Separate property cannot treated as ancestral property

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Question asked on: 02/02/2017

I purchased some property from my own income. My family members are treating that property in the bunch of joint family property. I want to sell my property. Whether self-acquired property can be treated as joint family property.

Advised by: Shivendra Pratap Singh,

It is well settled that a Hindu can have interest in ancestral property as well as acquire his separate or self-acquired property. Both properties cannot be merged together and form a separate property like an ancestral property or self-acquired property. Nature of the property cannot be changed, a Hindu has right to hold both kind of property in same time and in different capacity.

An ancestral property is the property inherited by a person from his father, father’s father, or father’s father’s father. That means property inherited by a person from any other relation becomes his separate property. That exactly committed in your case, when disputed property is devolved upon you from your uncle it is a separate property or it can be said that it is your self-acquired property. You can hold or own both properties simultaneously with in exclusive nature.

You have an absolute and unfettered right to dispose of property (disputed in the suit) in the manner you like. Your child has no right to claim his share on basis of wrong belief that it is an ancestral property. Thus property inherited by a person from collaterals such as brother, uncle, etc., cannot be said to be ancestral property and his son cannot claim a share therein as if it were ancestral property.

If you have merged your separate or self-acquired property into ancestral property, then nature of the property becomes change. Whole property shall be called or treated as an ancestral property and all the coparceners have accrued right to enjoy it.

Thereafter your child (coparcener) can claim his right in the property on the basis of inheritance. But it is not simply proved by oral evidence, it must be shown that you have thrown your separate property into the common stock with a view to give up your exclusive right thereon. Unless it is not proved, said property cannot be treated as an ancestral property.

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Shivendra Pratap Singh

Advocate, Lucknow

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