PremiumOriginally, prior to Hindu Succession Act, 1956, coming into force, the law on succession was governed by the customary laws applicable to Hindus, particularly the Mitakshara School of law
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When does ancestral property on division, becomes self-acquired and under which Act or section?
—Name withheld on request
Based upon the understanding of the query, we assume that person asking the query is governed by the personal law applicable to an individual of Hindu religion. Originally, prior to Hindu Succession Act, 1956, coming into force, the law on succession was governed by the customary laws applicable to Hindus, particularly the Mitakshara School of law.
Mulla in his commentary on Hindu Law (22nd Edition) has stated that “All property inherited by a male Hindu from his father, father’s father or father’s father’s father, is ancestral property". The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth". Further, the daughter was entitled to limited share in the coparcenary interest of her father not having share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive, and negated the fundamental right of equality guaranteed by the Constitution of India.
However, with effect from 9 September 2005, the date of enforcement of the Amendment Act, the daughters became coparceners by birth, in their own right with the same liability in the coparceny property as if she had been a son. This is the current position confirmed in terms of the Supreme Court Judgments.
Now, under Hindu Succession Act, 1956, the term “Ancestral Property" is not defined.
As the law declared by the Supreme Court is binding on all courts in India and there being an absence of any explicit provision under Hindu Succession Act, 1956, the field related to an ancestral property on division becoming self-acquired can be stated to be governed by the law declared by the Supreme Court by and under its various judgments.
Aradhana Bhansali is partner, at Rajani Associates.