One of the favourite riddles of all time is ‘Which came first – the chicken or the egg?’ There is no clear answer to this question. Similarly, one of the favourite questions under Hindu law is
‘Whether a property is ancestral or self-acquired?’ This column has on multiple occasions examined the question in the light of decisions of the Supreme Court of India. However, every time there is a new decision on this point, it becomes necessary to re-examine this very important issue and consider the earlier case law on the subject.
Under the Hindu Law, the term ‘ancestral property’ as generally understood means any property inherited from any of the three generations above of male lineage, i.e., from the father, grandfather, great grandfather. In fact, two views were prevalent with regard to ancestral property: View-1: Ancestral property cannot be alienated. According to this, if the person inheriting it has sons, grandsons or great-grandsons, then it automatically becomes joint family property in his hands and his lineal descendants automatically become coparceners along with him. View-2: Ancestral property can be alienated since it becomes self-acquired property in the hands of the person inheriting it. Thus, he can alienate it by Will, gift, transfer, etc., or in any other manner he pleases.
EARLIER IMPORTANT DECISIONS
CWT, Kanpur and Others vs. Chander Sen and Others (1986) 3 SCC 567
In this case, the Supreme Court concluded that property inherited by a Hindu by way of intestate succession from his father under the Hindu Succession Act, 1956 would not be HUF (or ancestral) property in the son’s hands vis-à-vis his own sons. This position was also followed in Yudhishter vs. Ashok Kumar (1987) AIR SC 558.
Bhanwar Singh vs. Puran (2008) 3 SCC 87
Here, the Supreme Court followed the Chander Sen case (Supra) and various subsequent judgments and held that having regard to the Hindu Succession Act, 1956, property devolving upon the sons and daughters of an intestate Hindu father ceased to be joint family property and all the heirs and legal representatives of the father would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue.
Uttam vs. Saubhag Singh AIR (2016) SC 1169
This was a case where a Hindu died intestate in 1973 (after the commencement of the Hindu Succession Act). The Court held that on a conjoint reading of sections 4, 8 and 19 of the Hindu Succession Act, once the joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it and they hold the property as tenants in common and not as joint tenants.
Arshnoor Singh vs. Harpal Kaul, AIR (2019) SC (0) 3098
A two-member Bench of the Supreme Court analysed various earlier decisions on the subject and held that after the Hindu Succession Act, 1956 came into force, the concept of ancestral property has undergone a change. Post-1956, if a person inherited a self-acquired property from his paternal ancestors, the said property became his self-acquired property and did not remain coparcenary property.
However, the Apex Court held that if the succession opened under the old Hindu law, i.e., prior to the commencement of the Hindu Succession Act, 1956, then the parties would be governed by Mitakshara law. In that event, the property inherited by a male Hindu from his paternal male ancestor would be coparcenary property in his hands vis-à-vis his male descendants up to three degrees below him. Accordingly, the nature of property remained coparcenary even after the commencement of the Hindu Succession Act, 1956. Incidentally, the comprehensive decision of the Delhi High Court in the case of Surender Kumar vs. Dhani Ram, AIR (2016) Delhi 120 had taken the very same view.
The Supreme Court further analysed that in the case on hand, the first owner (i.e., the great-grandfather of the appellant in that case) died intestate in 1951 and hence the succession opened in 1951. This was a time when the Hindu Succession Act was not in force. Hence, the nature of property inherited by the first owner’s son was coparcenary and thereafter, everyone claiming under him inherited the same as ancestral property. The Court distinguished its earlier ruling in the case of Uttam (Supra) since that dealt with a case where the succession was opened in 1973 (after the Hindu Succession Act, 1956 came into force) whereas the present case dealt with a situation where the succession was opened in 1951. The Supreme Court reiterated its earlier decision in the case of Valliammai Achi vs. Nagappa Chettiar AIR (1967) SC 1153 that once a person obtains a share in an ancestral property, then it is well settled that such share is ancestral property for his male children. They become owners by virtue of their birth. Accordingly, the Supreme Court did not allow the sale by the father to go through since it affected his son’s rights in the property. Thus, the only reason why the Supreme Court upheld the concept of ancestral property was because the succession had opened prior to 1956.
Doddamuniyappa (Dead) through LRsv Muniswamy (2019) (7) SCC 193
This decision of the Supreme Court also pertained to the very same issue. The Court held that it was well settled and held by in Smt. Dipo vs. Wassan Singh (1983) (3) SCC 376 that the property inherited from a father by his sons became joint family property in the hands of the sons. Based on this principle, the Court concluded that property inherited by a person from his grandfather would remain ancestral property and hence his father could not sell the same. In this case, neither did the Supreme Court refer to its earlier decisions cited above nor did it go into the issue of whether the succession had opened prior to 1956. It held as a matter of principle that all ancestral property inherited by a person would continue to be ancestral property for his heirs.
It is humbly submitted that in the light of the above decisions, this view would not be tenable after the enactment of the Hindu Succession Act, 1956. However, based on the facts of the present case one can ascertain that the first owner died sometime before 1950 and hence it can be concluded that the succession opened prior to 1956. If that be the case, as held in Arshnoor Singh vs. Harpal Kaul (Supra), the property continues to be ancestral in the hands of the heirs. Hence, while the principle of the decision in the Doddamuniyappa case seems untenable, the conclusion is correct!
LATEST DECISION
One more Supreme Court decision has been added to this roster of cases. The decision in the case of Govindbhai Chhotabhai Patel vs. Patel Ramanbhai Mathurbhai, AIR (2019) SC 4822 has given quite a definitive pronouncement. In this case, a property was purchased by the father of the Donor and it is by virtue of a Will executed by the father that the property came to be owned by the Donor in 1952-1953. Subsequently, the Donor executed a gift deed in favour of a person. Subsequent to the demise of the Donor, his sons objected to the gift on the ground that what their father received was ancestral property; moreover, since he got it by way of partition, hence it could not be gifted away. The sons relied upon an earlier Supreme Court decision in the case of Shyam Narayan Prasad vs. Krishna Prasad, (2018) 7 SCC 646 to contend that self-acquired property of a grandfather devolves upon his son as ancestral property.
The Supreme Court considered its earlier decision in the case of C.N. Arunachala Mudaliar vs. C.A. Muruganatha Mudaliar, AIR (1953) SC 495 where, while examining the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by gift or testamentary bequest from him, it was held that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property. It was further held that a property gifted by a father to his son could not become ancestral property in the hands of the Donee simply by reason of the fact that the Donee got it from his father or ancestor. It further held that a Mitakshara father is not only competent to sell his self-acquired immovable property to a stranger without the concurrence of his sons, but he can make a gift of such property to one of his own sons to the detriment of another. When the father obtained the grandfather’s property by way of gift, he received it not because he was a son or had any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well.
To find out whether or not a property is ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked into. The Court held that property could ordinarily be reckoned as ancestral only if the present holder had got it by virtue of his being a son or descendant of the original owner. The Court further held that on reading of the Will as a whole, the conclusion becomes clear that the testator intended the legatees to take the properties in absolute rights as their own self-acquired property without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons as ancestral property. Thus, the intention arising from the document / transfer / transmission was held to be an important determining factor in that case.
The Court in Govindbhai’s case (Supra) also referred to its earlier decision in Pulavarthi Venkata Subba Rao & Ors. vs. Valluri Jagannadha Rao (deceased) by LRs, AIR (1967) SC 591. In that case, a life interest benefit was given by a father to his two sons. The Court concluded that the properties taken by the two sons under the Will were their separate properties and not ancestral since there was no such intention in the Will.
The Court in Govindbhai’s case (Supra) also examined the reliance placed on Shyam Narayan’s case (Supra) and held that in that case the Apex Court did not question the issue of whether the property was ancestral property. It only held that once ancestral property was partitioned it continued to be ancestral in the hands of the recipient sons and grandsons. Hence, that case was not applicable to the facts of the case on hand. In that case, the Trial Court and the High Court had held that property received on partition of an HUF in 1987 was ancestral property. The Supreme Court found no reason to disagree with this conclusion. While the facts emerging from the Supreme Court decision are not fully clear, it is humbly submitted that the conclusion reached in the Shyam Narayan case (Supra) requires reconsideration.
Ultimately, in the case on hand (Govindbhai), the Supreme Court held that since the grandfather purchased the property and he was competent to execute a Will in favour of any person, including his son, the recipient (i.e., his son) would get it as his self-acquired property. The burden to prove that the property was ancestral was on the plaintiffs alone. It was for them to prove that the Will of their grandfather intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of Donor has to be treated as self-acquired property. Once the property in the hands of the Donor is held to be self-acquired property, he was competent to deal with his property in such a manner as he considered proper, including by executing a gift deed in favour of a stranger to the family. Accordingly, the gift deed was upheld.
CONCLUSION
A conjoined reading of the Hindu Succession Act, 1956 and the plethora of decisions of the Supreme Court shows that the customs and traditions of Hindu Law have been given a decent burial by the codified Act of 1956! To reiterate, the important principles laid down by various decisions are that:
(a) Inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property;
(b) Ancestral property can become an HUF property only if inheritance / succession is before 1956 and such HUF property which came into existence before 1956 continues as ancestral property even after 1956;
(c) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of his death, inheritance of a property of such a person by his heirs is as a self-acquired property in the hands of the legal heirs. They are free to deal with it in any manner they please.
(d) After passing of the Hindu Succession Act, 1956 if a person inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same;
(e) Self-acquired property received by way of gift / Will / inheritance continues to remain self-acquired in the hands of the recipient and he is free to deal with it in any manner he pleases.
Considering that this issue regularly travels all the way to the Supreme Court time and again, is it not high time that the Parliament amends the Hindu Succession Act to deal with this burning issue? If the Income-tax Act can be amended every year, and now even the Companies Act is amended regularly, why cannot this all-important law be amended with regular frequency? This Act touches many more lives and properties as compared to several other corporate statutes but yet it was last amended in 2005 and that, too, suffered from a case of inadequate drafting! One wishes that there is a comprehensive overhaul of the Hindu Succession Law so that valuable time and money are not lost in litigation.
