PARTITION OF ANCESTRAL PROPERTY: ROLE OF LAW AND CUSTOMARY PRACTICES

Astha Srivastava

6 days ago

Author: Vijay R. Agale, Balaji Law College, Savitribai Phule Pune University, Pune

To the Point

Partition of ancestral property is a complex legal issue deeply influenced by statutory laws, judicial precedents, and customary traditions. The division of ancestral property determines the inheritance rights of family members, impacting generations. In India, property laws are primarily governed by personal laws, including the Hindu Succession Act, 1956, Muslim personal laws, Christian laws, and customary laws followed by tribal communities. The legal framework regulating partition varies across religions and communities, making it essential to examine the statutory provisions, judicial interpretations, and customary norms that guide property division. Customary laws also play a significant role, especially in tribal and indigenous communities.

Use of Legal Jargon

Hindu Law – Partition can be affected through partition deed, family settlement, or court decree.
Muslim Law – Inheritance governed by Islamic principles of intestate succession.
Ancestral property – Type of property that has been inherited by a person from their ancestors, typically through a line of succession.
Coparcenary – type of joint ownership of ancestral property among the members of a Hindu joint family, with equal shares and a common ancestor.
Intestate succession – transfer of property from a deceased person to their heirs when there is no will to govern the distribution of the estate.
Testamentary disposition – Testamentary disposition refers to the distribution of a person’s property and assets after their death, as specified in their will.
Notional partition – notional partition is a fictional or assumed division of joint family property, which is used to determine the shares of the coparceners and for other legal and tax purposes.
Primogeniture – Primogeniture refers to a system of inheritance where the eldest child, typically the eldest son, inherits the majority of the property, titles, and other privileges upon the death of the parent or ancestor.
Self-acquired property – refers to property that is acquired by an individual through their own efforts, income, or resources, without any contribution or inheritance from their ancestors or family members.
Customary rights – These rights are based on long-standing customs, traditions, and practices that have been passed down through generations.
Legal heirs – Legal heirs refer to individuals who are entitled to inherit the property, assets, and rights of a deceased person, as determined by law or by the deceased person’s will.

The Proof

The distribution of ancestral property is subject to legal interpretation based on lineage, inheritance rights, and statutory mandates. Courts have upheld the rights of legal heirs while also recognizing the validity of customary practices in cases where statutes are silent.

Partition under Hindu Law

Partition under Hindu law can be affected through various means, including a partition deed, family settlement, or court decree. The partition can be either total or partial, affecting the entire joint family property or specific portions. When a partition is affected, each coparcener becomes an independent owner of their respective share, with the right to dispose of it as they wish.

Partition deed under Hindu Law

A partition deed is a legally binding document that must be executed on a stamp paper and registered under the Registration Act, 1908, to ensure its legal validity. A partition can also occur through notional partition, a legal fiction used in cases where a coparcener dies intestate. Notional partition helps determine the share of the deceased coparcener, which is then distributed among legal heirs as per the succession laws.

Muslim Law and Property Division

Unlike Hindu law, Muslim law does not recognize the concept of ancestral property or coparcenary. Instead, inheritance is governed by Islamic principles of intestate succession. The Quran prescribes fixed shares for heirs, and property is distributed accordingly. Under Sunni law, property is divided among legal heirs, with male heirs generally receiving twice the share of female heirs. Under Shia law, inheritance rules may differ slightly, depending on the sect.
Muslim law prohibits the creation of joint family property, meaning that property owned by a person is considered self-acquired and must be distributed according to Shariah law upon their death. However, a Muslim individual can dispose of only one-third of their property through a will, while the remaining two-thirds must be distributed among heirs as per prescribed shares.

Christian and Parsi Law

Under the Indian Succession Act, 1925, Christians and Parsis follow intestate succession rules that do not differentiate between male and female heirs. In the absence of a will, the property is distributed among legal heirs, including the spouse, children, and parents.

Role of Customary Practices in Partition

In many parts of India, customary practices continue to influence the partition of property, especially among tribal and indigenous communities. These customs vary from region to region and often conflict with codified laws. Some tribal communities follow matrilineal succession, where property is inherited through the female lineage, while others adhere to patriarchal norms that exclude women from inheritance. Courts have intervened in cases where customary practices contravene constitutional principles of gender equality and social justice.

Abstract

This article delves into the nuances of ancestral property partition, analyzing the interplay between codified laws and customary practices. It highlights the legal principles governing succession, the impact of judicial precedents, and the role of personal laws in determining inheritance rights. The aim is to understand how the law and tradition coexist in property distribution disputes.

Case Laws

Prakash & Ors v. Phulavati (2015) 17 SCC 653 – This case clarified the retrospective application of the Hindu Succession (Amendment) Act, 2005, stating that daughters have equal coparcenary rights if the father was alive on 9th September 2005.
Danamma @ Suman Surpur & Anr. v. Amar & Ors. (2018) 3 SCC 343 – The Supreme Court reaffirmed the equal rights of daughters in coparcenary property, reinforcing gender equality.
Mohd. Shafi v. Syed Maqbool (2017) 9 SCC 720 – The Supreme Court upheld the application of Muslim personal law in property disputes, recognizing the role of customary inheritance practices.
Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1 – The Supreme Court clarified that daughters have equal rights in ancestral property, irrespective of whether their father was alive in 2005.

Conclusion

Partition of ancestral property is a legal and cultural phenomenon, deeply influenced by statutory laws, judicial interpretations, and customary practices. While codified laws aim for uniformity, customary practices provide community-specific solutions, often leading to legal ambiguities that require judicial intervention. While the Hindu Succession (Amendment) Act, 2005, has significantly improved gender equality in inheritance laws, challenges persist in implementation. Muslim and Christian laws provide clear frameworks but face challenges where customary practices create ambiguities. Judicial precedents continue to evolve, ensuring fair application of inheritance laws while addressing conflicts between tradition and modern legal principles.

FAQS

What is the difference between ancestral and self-acquired property?

Ancestral property is inherited up to four generations without division, whereas self-acquired property is individually earned and can be disposed of at will.