My father inherited a property from his father, which we understand is ancestral property from his father. He is now planning to sell it and distribute the proceeds. Do my siblings and I have a right in this property by birth? Can he sell or bequeath it without our consent? Will my sister have the same rights as I do in this property?
– Name withheld on request
We assume that you are a Hindu family covered under the Mitakshara school of Hindu law.
Under Hindu law, not every property inherited from a father qualifies as ancestral or joint family property. Whether a property has this character is a factual determination that depends on the original mode and source of its acquisition and how it has been transmitted across generations.
Factors that are relevant include whether the property has devolved across generations through intestate succession, will, gift or partition. Given the factual nature and complexity of this analysis, it is advisable to seek legal advice specific to your circumstances.
Birth rights
Assuming the property does qualify as joint family property, you and your siblings would have acquired an undivided interest in such ancestral property by birth as coparceners in the Hindu Undivided Family (HUF).
Your sister will also have an undivided equal share in the ancestral property as a coparcener.
Following the implementation of the Hindu Succession (Amendment) Act, 2005, daughters have been granted equal coparcenary rights. This has been clarified by the Supreme Court in Vineeta Sharma v. Rakesh Sharma (2020), wherein the Court has held that daughters shall be treated as coparceners by birth in the same manner as sons, irrespective of whether their father was alive as on the date of amendment.
Further, your father, in his capacity as the Karta of the HUF, cannot transfer the ancestral property without the consent of the other coparceners, except in limited circumstances where the transfer is warranted by legal necessity or for the benefit of the estate.
Any unilateral transfer of HUF property by the Karta that does not satisfy these criteria can be challenged in court.
Will exception
That said, although your father cannot unilaterally deal with the entire ancestral property, he can bequeath his own undivided coparcenary interest in the HUF by his will to any person of his choosing. This is permitted under the Hindu Succession Act, 2005.
The above is based on a general interpretation of the applicable legal provisions and judicial precedents, so do consult a lawyer to understand how these principles apply to the specific facts and circumstances of your case.
Shaishavi Kadakia is a partner and Ayushi Jain is an associate at Cyril Amarchand Mangaldas, Mumbai.
