While dividing ancestral property, do we need to keep equal share for parents also or is it divided among children equally?
Assuming that the person who owns the ancestral property is a Hindu male, there is no requirement to keep any share in such property for parents if the person desires to will the property to his children. Under succession law as applicable to a Hindu male, testamentary succession is possible in respect of all properties (including shares in joint family property).
However, if the person were to die intestate, his properties (including inherited ancestral property and shares in joint family property) would be inherited by his heirs in the order of priority as set out in the Hindu Succession Act, 1956, which sets out four classes of heirs. Class I heirs comprise of children, mother, widow, children of predeceased children, widow of predeceased son, children of predeceased son of predeceased son and widow or predeceased son of predeceased son who will be entitled to inherit the properties in equal shares. If there are no class I heirs, then the heirs falling under the subsequent class of heirs would be entitled to the properties and so on.
In the event that the ancestral property forms part of joint family property then while the principle set out above would apply for the purpose of succession, to determine the person’s share in the joint family property it would be important to know whether one would fall under the Mitakshara school of law or the Dayabhaga school of law (which is more prevalent in West Bengal).
Under the Mitakshara school of law, the interest of each coparcener (all persons entitled to a joint property are known as coparceners) in the joint family property is a notional interest which crystallizes only upon partition of property. Every child of a person who is a coparcener becomes a coparcener in the joint family property by virtue of birth and therefore the ownership rights of each coparcener under the Mitakshara school of law is a fluctuating concept (depending on the birth of children to coparceners and death of coparceners).
Under the Dayabhaga school of law, there is no concept of notional interest in family property and, therefore, at all times a person’s interest in family property is an identifiable portion which can be bequeathed/succeeded to in accordance with the succession laws as explained above.
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