Can an Ancestral Property be Sold without Successor’s Consent?

This article emphasizes the significance of understanding consent under the Hindu Succession Act, 1956, concerning ancestral property. It underscores the inherent rights of every successor from birth.

Introduction

One is well aware of the word ‘inheritance’. However, a lack of knowledge in the context of authority and responsibility towards inherited ancestral property further leads to violations of their rights. Have you ever wondered why it is necessary to get consent from every successor before selling ancestral property, or why this issue has always been cited in court? It is a considerable issue addressed over time and in specific circumstances. Every Hindu member shall be familiar with a successor’s consent.

What is ancestral property?

According to the Hindu Succession Act 1956, any property that has been carried forward from the past four generations of a family and has been continuously inherited through generations shall be considered ancestral property. If the property gets divided, then it shall be considered self-acquired property.

In Vineeta Sharma v. Rakesh Sharma, (2020) the Supreme Court held that a woman or daughter can inherit ancestral property and be considered a joint legal heir equally as a male or son, even though the father was not alive before the Hindu Succession Amendment Act, 2005.

Types of Ancestral Property

Property inherited from a paternal ancestor: Property inherited from a father, grandfather, great-grandfather and so on by a male Hindu is ancestral property. The children who inherit such property have had a right to it since birth.

Property inherited from a maternal grandfather: The daughter shall have a share of the parents’ ancestral property and the maternal grandchild shall also have a share.

Share allotted on a portion: A portion that is partially divided among the coparcener of the ancestral property.

Property received by gift or pleasure from a paternal ancestor: A gift given by a male Hindu to his son from his self-acquired property shall not constitute ancestral property. In C. N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar and Another, (1953) the Supreme Court held that it is visible that such property is gifted to attain personal benefit from it, not to add a number to ancestral property.

Who is the successor?

According to the Hindu Succession Act 1956, a successor in a Hindu family is a person who inherits the property and has had a right to it since birth. It has been categorized into two parts: Class I and Class II.

Class I Heirs

• Spouse (Widow or Widower)
• Sons and Daughters (Biological or Adopted)
• Mother
• Grandchildren (from predeceased son or daughter)

Class II Heirs

• Father
• Brother/Sister
• Grandchildren of predeceased Son/Daughter (Niece/Nephew)
• Father's relatives (depends on specific rules)
• Mother's relatives (depends on specific rules)

Which law should be applied?

The Hindu Succession Act, 1956, applies to Hindus, Jains, Sikhs, and Buddhists, whereas Muslim personal laws apply to Muslims, and for Parsis and Christians, the Indian Succession Act, 1865, is applicable.

Who can sell the ancestral property?

Since rights over the ancestral property are from the past four generations, there can’t be a sole decision to sell the ancestral property. Even the head of the Hindu Undivided Family, who has the power and control over the assets according to Hindu law, can’t sell ancestral property without getting consent from every coparcener.

Before selling the ancestral property, consent from every successor is required. Failure to get consent from even one successor will violate his or her share of ancestral property and lead to legal action. After every coparcener agrees to sell the ancestral property, no one can seek legal action against them for the violation of their share of ancestral property.

For example:- A has a share in ancestral agricultural land along with his brother B and has sold it to C without getting consent from B. Later, B gets to know about this and files a suit against A for not getting consent from him about selling the ancestral property. Whether the court will hold A liable? Yes, because it is necessary to obtain consent from every successor before selling out the ancestral property.

Case laws

In Sushil Kumar v. Ram Prakash, (1988) the Supreme Court held that a Karta from a Joint Hindu family can sell the ancestral property without taking consent from coparceners if legal necessity is present. In the absence of legal necessity, consent from all successors is necessary.

In Sri Narayan Bal & Ors. v. Sridhar Sutar & Ors., (1996) the Apex Court held that the coparcener has a right over the ancestral property but can’t seek an injunction against Karta to prevent him from selling the ancestral property when it is done for legal necessity or the betterment of the estate. Further held that the interest would be bound over all the coparceners including widows and minors.

In Beereddy Dasaratharami Reddy v. V. Manjunath & Anr., (2021) the court held that there are no specific points that will state the legal necessity, but it shall vary from facts in every case. Karta has the power to sell the ancestral property only when the legal necessity is satisfied by the coparcener. The court further held that the purchaser of immovable property shall make all the adult coparcener the parties to the deed or witness to the deed. After ensuring this, no suit shall be considered against the deed.

Conclusion

To have a legally sound sale of ancestral property, consent is necessary. Attempting to bypass such a process will lead to legal challenges and other consequences. Legal advice is required in such cases, before taking any action that results in consequences.

References