Top Ten Myths of Ancestral Properties: Ameet Kumar Deshpande, Senior Advocate

Good evening friends and happy independence day first of all and we are glad that on the independence day we have Amit Kumadeshw with whom we have started a series in respect of professionals who can understand the nuances today's top 10 myths of ancestral law I will not take much time since we all know that everybody was busy celebrating the independence day and that favor will continue on behalf of Beyond Law CLC and Associates. >> Namaste. A very happy Independence Day all of you. Let me begin by giving my salutations to my motherland. Namaste. I'm very glad that today being the national festival we are all still engaged in academic exercises. So congratulations everyone. Congratulations Mr. Senior advocate Vikas Chhatra GI and Sri Vikram advocate for organizing and giving us all an opportunity to again think about academics and make ourselves more enriching to help the litigants and the citizens. Like always, I wish that all of you must know that when we speak of Hindu law, we speak of two important commentaries. One is da bhaga and another is mitakshara. As you all know friends, mitakshara is a vivriti on the traits by yadnal named yadnalesi. This vibrakara is written by Vidyaneshwara and I'm very very happy and glad to announce and introduce to all of you that a stone inscription mentions that Vidyaneshwara has written Mitakshara and for his aerodite authorship of this book the Chalukia Chakraarti Vikramadita the 6th comes and salutes the author with his crowned jewel on his head. That indicates that a king when he is saluting any respected person with the crowned jewel on his head would mean that he is indicating that the entire population under him is bowing at the feet of that scholar. Now this stone inscription dates back to around 1123 AD. This stone inscription was found and was researched by uh archaeologists and historians and this was found in a place in Karnataka in the northern district of Karnataka named Kaluri in a village named Mur. The former judge of the high court of Karnataka and judge of the high court of Punjab and Hariana, Justice M. Rama Joyce who later became the first governor of the state of Jharkhand and was also the governor of state of Bihar took pains to seek donations from several legal luminaries and other generous people and has built a huge research ban in this small village named Mur in Kalborgi district of the northern part of Karnataka state. I would request all of you to visit this place and to see the grandeur of this research bhavan and read the inscriptions stone inscription. Now let us come back to the topic of today. Myths about ancestral property though the topic seems to be wider when it names ancestral property. It can include if at all it is possible ancestral property among various jurisdictions, various Jewish prudences. For example, we can also think of the possibility or otherwise of ancestral property among Muslims, among Christians, among Jews, among paries, among gines, among Buddhists, etc. Nonetheless, for the purpose of our topic today, we are dealing with this topic ancestral property more for the purpose of understanding the proprietary rights of members of the Hindu undivided family and Hindu population to whom the rights in the ancestral property would become relevant. Just for the purpose of introduction, we all should remember that in no other jurisdiction in the world, the concept of right to property by birth is available to my knowledge. in all the jurisdictions of the world other than the peculiar Jewish prudence applicable to the Hindus that to not to that class which follows the principles under the Dahabhaga but more of that class which follows the principles under the mitakara text. All other jurisdictions would only recognize right to property after the death of the person who holds it. So far as Hindu law is concerned, the right to property occurs to a person not because of the death of a person who owns or holds the property alone but also in certain circumstances just because of the event of birth in the family. Let us now first understand what is property. This is a very general understanding just for the purpose of introduction to very young students of law. Property is anything that is capable of being possessed. It can be any object but it can be corporeal or it can be incorporal that is tangible or intangible. For example, it can be property like a car, a landed property, a house or it can be patent, it can be copyright, it can be trademark. However, juristprudence understands one particular aspect about property and that very important aspect about property in jurisprudence is not only ownership, title but also possession. Now what is possession? Possession is not mere control or holding of the property with oneself but it is defined or understood in the legal parlance as the relationship relationship or it is a bundle of rights and a relationship between the person who is entitled to and the object to which he is exercising upon which he is exercising this right. So this relationship is treated as possession. We will now come to the important aspects what we need to know from the perspective of the litigating lawyer. We should remember two important aspects that there is something called joint property or what we call as joint tenency and another concept called teny in common. What is joint teny? What is teny in common is also to be understood by all of us for the purpose of clarity. The co-ownership or the nature of co ownership in joint tenants is that in joint tenants each owner has a definite share. When it is a tenency in common, the owners have a share but it is not defined unless a particular event happens. The in joint ownership or joint teny the right of one co-owner devolves upon the surviving coowner. In teny in common, the undefined share of the coowner passes by succession to the heirs of the deceased. So this is the broader understanding of tenency in common and joint tenants. Now we have uh two concepts. One is a Hindu undivided family or a joint Hindu family. The other concept is a coparinary. We all must remember one thing that in law there is a presumption that generally a Hindu family is joint. However, we should also remember that there is no presumption in law that a joint Hindu family or an undivided Hindu family always possesses property or always possesses joint family property. We all get confused with these two different aspects of the presumption of jointness. When we speak of Hindu law, we say that there is a presumption of jointness in the Hindu family. However, this should not be misunderstood to mean that there is a presumption of jointness of the property also like any other fact that is required to be proved under the evidence act or now the present sakia. This fact also that a particular property is joint family property is to be proved. There is a joint family and a coparary. Joint family consists of or rather joint family is a larger a wider unit. Copars is a narrower unit. Joint family consists of for example in our families we have parents both the parents the siblings male and female the spouses of all the siblings their children both male and female persons who are adopted into the family by any one of us. All of these people constitute joint Hindu family. But when it comes to calling what is coparenary, a smaller unit of this larger joint family is copenary which is this coparary comprises of there is a small distinction that we must all bear in mind. The definition of copars or the or the constituents of copars have changed from from time to time under the classic Hindu law or the shastri Hindu law or the pre956 Hindu law. Copary was understood to consist of all the male lineal descendants constituting three generations from a common propositus which would mean the common propositus himself and three generations thereafter. That is the four generations put together. All the male members of these four generations put together are coparseners and this body of copars is called the coparsenary. For example, just for our clarity, let us assume that Mr. A is the propositus who is alive. He has three children B, C and D. B, C and D in turn have two children each of them F, G, H, J, K and L. Now each of these persons also have another one or two children. All these persons together from A to the last of the person would constitute if there are males prior to 1956 only the males would constitute a co-arsenary in 1956 as you all know the Hindu law the classic shastri Hindu law was codified four enactments were enacted by the parl Parliament. One of them is the Hindu succession act. What was the challenge before the parliament that day was that from all these copars who hold ancestral joint family property or co-parsenary property if there is one male co-partner who passes away the classic Hindu law would permit the share of that co-parsener to be succeeded or to be devolved upon by survivorship. ship upon the other male members or upon the other co-parseners. In this process, what was found out was that the females of the joint family, the larger body would seldom get any proprietary rights in this property. to overcome that and to restore more rights or sense of security and equality on all the members in the joint family. Section six was brought in where it was mentioned that if any male Hindu governed by the mitakshara principles of Hindu law passes away leaving behind female heirs those female heirs which are enumerated in class one of the Hindu succession act. Then the proposition that prior to the enactment pre-1956 classic Hindu law his interest in the ancestral copars property would devolve by survivorship upon the remaining existing male copars is not to happen now. But what shall happen is by a notion by a fiction that particular male member who has passed away by a notion and by a fiction an assumed partition is to be made as if there was an actual partition just before the last breath of that particular deceased male co-partner. If there were to be a partition during the lifetime of that copar, what would have been his percentage of share in the joint family and ancestral copars property that is to be carved out and from that property the class one heirs mentioned and in the Hindu succession act especially in the class one air we must all remember there Are female heirs mentioned also the widow of the deceased, the mother of the deceased, the daughters of the deceased are also enumerated therein. All of them would get a particular share as per their right from the property carved out in that notional partition or carved out from the and whatever would be the succession from the percentage of share that the deceased co-person has got would be given to them under succession. This was the first change that was brought out brought about by the 1956 enactment. By this the classic Hindu law which under which the female members in the family did not get a complete absolute right to succeed or to inherit the property of their predecessor was done away with and they were given a right to inherit to their immediate predecessor to the extent of whatever share that immediate predecessor would have got had there been a partition during his lifetime. Now in the year 2005 section six of the Hindu succession act was amended and what was mentioned is that in this definition or the constituents of this co-arsenary who were till that time only the male members of the joint family who are to be included are the daughters of such male co-arers also. So now the daughters of of a copar would also become a copar in the body of cars. So in this case if I can give you and repeat the same example. A is the propositus who is for the present holding the property. He has two sons B and C and one daughter D. Then now it is to be assumed that A B C and the daughter D all of them are co-parseners provided the property which they hold is an ancestral coparary property. Now this is the first change that has happened. This particular amendment of the year 2005 has been subject matter of several interpretations by various high courts by the honorable Supreme Court also. And finally, we all should note this in the case of Vinita Sharma versus Rakkesh Sharma. The honorable Supreme Court by a bench of three honorable judges has put to rest the controversies the various interpretations that were given hitherto and has held that the daughter in the family of a copary would be entitled to be treated as a co-par from the time of her birth and therefore Now from 1956 and onwards the enactment is prospective. 1956 and onwards all the daughters of a copar are to be treated as copars and hence whenever section six is to be actually applied to a particular case and a notional partition is to be made to carve out the share of a deceased copar in the ancestral property in the cartary property. Now the daughter in the in the co-parsner in the family also has to be taken note of and accordingly the shares have to be worked out. We have now the difficulty of what is ancestral property. We must remember three things. One is property that can be ancestral to a particular person. property that can be a joint property to a particular person in jointness with another or few other persons in the joint Hindu family property that is selfacquired by that individual and therefore that property which is called individual or independent or self-acquired properties. Now we have three classes of properties mentioned here. the joint family property, ancestral copars property and self-acquired and independent property of an individual. What is a joint family property? The entire body of the joint Hindu family which consists of innumerable members including the males, the females, the spouses of the male members, persons who are adopted into the family. All of them together are members of the joint family and therefore all of them together might possess certain real or incorporal movable or immobile property for the use of everybody. Now joint property in this sense is distinct from what is ancestral property. It is it may not always be necessary that joint property should be ancestral or should be capar property. A joint property can be distinct from the ancestral and copars property. This is what we all need to remember. This is where confusions also have happened. So let there be clarity in this. I can say this is one of the few myths that we all possess that a joint property or a joint family property is always ancestral property or is always copyary property. No, joint family property could be in one given particular circumstance be distinct from ancestral copars property. Now what is ancestral property by definition or by understanding hitherto which we can refer to from the commentaries of main on Hindu law and usage or commentary by moola on Hindu law rahawara on Hindu law and many more other such texts. One is Mr. BN sats be Hindu law lectures what has been what what has been stated there is property which is inherited by a person from his father father's father or father's father's father is ancestral property in his hands. Now remember here friends the words used are the first myth is can there be a property which a person B inherits from his father and father alone which can be ancestral property at the hands of B or can there be property which B inherits from his father A who in turn has inherited it from his father let us assume D. Can that property be treated as ancestral property or as the definition mentions property which is in the hands of a person coming from his father father's father or father's father's father only that property is ancestral. Now let me refer to few instances what has been mentioned about this aspect just to clarify here itself. Let me also say that a person B might have had his property acquired by his self acquisitions, self income. Just because he dies leaving behind his son C, C acquires the property from his father, C would never take that property as ancestral for the purpose of what we are discussing the right by birth of his children, grandchildren and great-grandchildrens. So there is a possibility of a person inheriting the property from his father in the common parlance. Yes, it is a property which he inherits from his father. Father is an ancestor. But that is not sufficient in the case of Surjitlal Chadha versus the Commissioner of Income Tax. What has been held that held is that a joint Hindu family consists of persons who are linearly descended from a common ancestor and includes their wives and unmarried daughters. daughter on marriage to be a member of her father's family becomes a member of her husband's family and therefore this is a larger body joint Hindu family in the case of a judgment in the case of a judgment reported in a 1937 7 Privy Council page 233. It has been very specifically held that the property which is inherited by a person from his father, father's father or father's father's father is ancestral to him and becomes a coparary property. But remember friends in 1937 when this judgment was rendered and reported there was no Hindu succession act 1956 which said that among Hindus when there is a death there shall be succession to the property of a person under section as mentioned under section 8 of that act or as mentioned under section 15 of that act. And therefore what was basically understood in the year 1937 could be that the property held was ancestral property which has fallen to the hands of the propostors in that case from generations earlier. And the question was what should happen to the property which is held by such a person who takes it from generations earlier. And in that context the honorable the privy council in the case of Muhammad Hussein Khan versus Nandan Sahai Quinwan Nandan Sahai has held that property inherited from the maternal grandparents or maternal grandfather would not become an ancestral property and it further holds that it is a well settled proposition in Hindu law that the property ity which a man inherits from any of his mark these words in that judgment. any of his three immediate predecessors, paternal predecessors, namely his father, father's father or father's father's father is ancestral property as regards his male issues and his son acquires jointly with him an interest in it by birth. such property is held by him in co-parency with his male issues and the doctrine of survivorship applies to it. So that was a case where his father also held property which was not independent which was not selfacquired but held property at in his hands which fell to him from his ancestors. In such circumstances, the supreme the privy council held that yes either father or father's father or father's father's father from any of these three generations when a person inherits the property then so far as his children grandchildren are concerned. This property he holds it not for himself but he holds it for the children grandchildren and great-grandchildren all of whom will have a common share along with him in that property. In another judgment named Bhagwan Sulak versus Digar Gopal it is held that the character of joint family property does not change with the severance in the status of the joint family before an actual partition takes place. Now it is very important for all of you to remember that after 1956 there is a C change that happens. What happens is that in the male co-parsenary body if one co-parsener passes away and if he had any female heir like a widow a mother or a daughter left behind him then what is to be done is that a notional partition between him and his other male co-parseners should be made as if he was alive. Once you make that national partition, whatever share he would get in that division among the co-parenters, that share will go to again succeeded to by the other members mentioned in class one. How will that share be now made? Once once under section six of the Hindu succession act there is a notional partition of a joint co-partner property and one male member male co-person is deemed to have a particular share that particular share would then be succeeded to by the members shown in class one by virtue of what is stated in section 8 of the Hindu succession act. This is where it is important for all of us to read the judgment in the case of Utam versus Sabhak Singh previous judgments in the case of CIT versus Chandras which have said what would be the character of that particular property after the co-par property is notionally divided among the co-pareners and thereafter that divided part portion of the property is succeeded to by one of successors in class in shown in class one of the Hindu succession act it is held that it no more continues to remain as cartenary or ancestral property but once that is succeeded to by a heir by an heir under section 8 that heir holds that property as his property his independent property. You can also refer to another set of circumstances where there is a division among the co-parenters in the Hindu family. One co-par gets the property in that particular partition. Now what is the nature of the property in his hands? This has been explained by the Supreme Court in the case of Angari Chandran. Please note these judgments. They are very important judgments and since these are judgments which have thrown light on the very basic and fundamental principles of Hindu law. We all must know that there is always a scope for us to apply these principles in various different situations and sometimes propose more variety of principles also in different other circumstances. Our study will certainly help the judiciary. the honorable judges and the litigants to clarify more such variety of difficult situations that might arise in future. So friends, the first myth which I have said is that joint property is different from ancestral or cartelary property. Then it is not always necessary that the persons the the persons who are holding the property having inherited it from their father would always hold that property as ancestral property. property which has come to that particular person from his great-grandfather becomes ancestral property in his hands so far as the rights of his lineal descendants are concerned. The other myths are before 1956 a co-par did not have a right to bequit the co-parenary property but by virtue of section 30 of the Hindu succession act a co-arer can now bequit his share in the cars property in the ancestral property however Remember he even now cannot be with share beyond what is his in the cartary property but that cap that bar of an absolute bar of bequitting any property in the copars property prior to 1956 is taken away. So now if anybody says that no one can no coper can bequit or execute a will of the ancestral property that's a myth he can do it to the extent of his share in the property whether a woman now can succeed to the property the copars property or not this was a myth earlier that she cannot succeed after the 2005 Five amendment to the 1956 Hindu succession act a woman as a co-parener like any other son in of the co-parsener in the co-parsenary property is entitled to an independent share like a son like any other male co-parener would get a daughter also will get an independent share as a co-arsner this is in addition to what she will succeed to as class one heir to her father's share in the property. So remember this that she will be getting the share as a co-parener independent of the share that she would succeed to in case of death of the co-par father her father co-par remember friends there was a case decided before the honorable supreme court where to our surprise in fact and shock Despite clarification by an amendment by the parliament to section five of the Hindu succession act, what is what has been decided by the honorable Supreme Court is a very peculiar situation, a saddening situation that tribal women were still not given their share in the property of their father. So it was held by the honorable Supreme Court that the tribal women are also entitled for the share of their parents of their father in the ancestral property also. So women get a share in the coparary property in addition to the share as class one air tribal women also get a similar share. Now another myth is that the children who are born from void marriages or who are in general earlier named as I'm sorry to use this word illegitimate children because that is commonly referred to in the arguments in the courts. So whether such children would also get their right to property and to what extent and to which nature of the property held by their parents. This has been explained after a reference made to the larger bench of the honorable Supreme Court in the case of what is named Raven Siddhapa versus Malik Arjun. And it has been explained held that children who are called illegitimate children or who are born from a wide marriage are entitled for the share of their father. However, it should be remembered here that such children are not copar along with the other male copars in the larger copars of which their father was also a copar along with the legitimate children of such a father. Whether children born from a livein relationship are entitled for a share in their father in their father's property. It has been held that yes as children born from what we may term it as a living relationship who are living in a considerable period of time considerable length of time. Such living relationship the the partners in that living relationship are living in a considerable length of time. Children born from such living relations also have the right to inherit or succeed to the property of the father. The other myth and very important myth is that a co-arsener cannot alienate property. Now friends, I have said under section 30 of the Hindu succession act, a co-parener is entitled to bequit his share in the carterary by a will. Whether a coper can then donate or gift immovable property of his share in the by by way of a gift or something gift or any other way he could do. This has also been decided by the Supreme Court in the case of KC Lakshana versus KC Chandra Pagawa. And it has been held that this was a case where a managing member of a Hindu undivided family or a father Copar has the power to gift ancestral property or not. And it has been held that yes he can gift a karta or a managing member of the Hindu undivided family a father co-partner has the power to gift ancestral property but only for what is treated as pious purposes and if the gift is made for charitable or religious purposes alone which would not fall within the realm of our definition of pious purposes then gift for charitable or religious purposes alone is not acceptable in law but gift for char for pious purposes has been held to be appropriate and proper and just in this judgment case chandra case laxana versus ky chandra pagoda I have also referred earlier that once there is a partition or division in the property of the coparseners. The divided member of the urswil co-parsenary would hold such property for himself as an independent owner and the character of the said property as ancestral and cartenary property so far as his other heirs are concerned would end. There is one set of judgments which speak about this that if there is a sole person sole co-par sole surviving co-parsner in that so-called body of co-parsenary and if he inherits or if the property is devolved to him what would be the nature of rights over the property which he so inherits so long as he is a sole co-parsener he will have all the rights absolute rights to deal with that property as if it is is independent self-acquired property. Nonetheless, if there is a son born to him and the property still exists and continues to vest and to be held by that person, then the son, the birth of the son would revive that co-ar with his father. This has also been held. So by passing remark in the judgment of Vinita Sharma versus Rakkesh Sharma. This was also the position prior to 1956. You all can refer to that judgment in the case of Arunachal Mudyar. However, kindly now refer to the latest judgment in the case of Utam versus Sabhak Singh and also in the case of Angi Chandrana. The reference to living relations who are living together for an extended period and the offspring of such partners getting a right over the ancestral property of their father. This has been held in the case of Katukandhiatil Krishnan versus Katukandhiatil Walsson. This is also the same judgment where the Supreme Court clarifies another position of law that after a suit for partition is decreed, it is only a preliminary decree which is passed and the entire suit does not come to a final end. There is what is called the final decree yet to be prepared and therefore final decree proceedings have to continue des after the preliminary decree is passed. There have been instances where an application filed by one of the decree holders after a preliminary decree is passed in a suit for partition among Hindus for the purpose of preparing the final decree has been rejected by the courts on the ground that it is barred by limitation. In the case of Katukandhi Edatil Krishna versus Katukandi Walsson, the Supreme Court holds that final decree proceedings are nothing but continuation of the suit after the preparation of the preliminary decree and hence there is no question in fact of any person seeking or making an application to drop a final decree. It is the duty of the court which has drawn up a preliminary decree to proceed further and to ultimately drop a final decree also. that procedure in fact requires the actual division of the properties by needs and bounds. So this is the same judgment where it has also been held that the children of the partners in a living relationship who have lived for an extended period have rights in the ancestral property of the father. I have now a question for all of us to ponder over. We have come across the interpretations of section six of the Hindu succession act which has been amended in the year 2005 and it has now been conclusively held by the honorable Supreme Court in the case of Vinita Sharma versus Rakkesh Sharma that the daughters of a co-par like the sons would be entitled for an independent share in the co-parsary property as a co-par. Now when that daughter gets that cop share in the copars property in turn qua her children grandchildren and great grandchildren would she be also forming another independent coparary body or not though the there are few judgments of few high courts including the judgment of the honorable high court of Bombay which has held that which has decided about this issue. Kindly see if as lawyers will there be an anomaly in applying the principles which would as a consequence as a necessary corollary emanate from application of section six to the rights that a daughter will get from the cartary properties versus section 14 of the Hindu succession act section 15 and 16 of the Hindu succession act. Therefore the first principle which I referred to earlier referring to 1937 privy council is that instances have been seen in the experience of a lawyer where the mother inherits property from the son and that property the son had inherited it from his father father's father and father's father's father whether that mother is holding the property as a copary property. It is not because for a particular person to hold ancestral property, the property should have come from his great-grandfather, his grandfather, his father to him, not vice versa, from him to his mother. Therefore, in that 1937 judgment, what has been held is that if the property has come from a maternal grandfather, would that amount to a also a co-paren or not? And the answer is no. If that principle is continued to be applicable even today, then the daughter who gets right in the co-parsenary property as an independent co-par by virtue of amendment to section six would get it as her absolute independent property and it would not be holding. It would not be a property which she holds in the nature of a co-paren for the benefit of her children, grandchildren or great-grandchildren. She would be independently absolutely holding it. This is one view. The other view is if at all you the lawyers want to argue and test this argument logically under section six whatever are the rights and liabilities that a son has got in the coparsary property same rights and liabilities the daughter would also incur in that cars property. And if we are able to accept this that the property which she owns by virtue of her right as a co-arer under section six will have to be also shared with her children and that sharing is a liability as such then and only then if it is a liability then it probably it could be argued that yes she should hold it in fairness as a co-ar property for her children also but let me clarify here friends I am just giving you thoughts to think about ponder about because there should not be an erroneous argument happening elsewhere and this is where you can start thinking right now if somebody makes an attempt to make a contrary argument my personal view is that the sons who are getting the property as co-parent ers would retain the property as coparary property if there are already children, grandchildren or great-grandchildren any of the them having taken birth the day when they succeed. So far as daughters are concerned, they would acquire right in the copenary property and they would hold it for themselves absolutely without having it to be shared with her children or grandchildren or great-grandchildren. This is all for the present. I hope I have made some sense to all of you. As always I have said what I have mentioned is something which I have tried to understand and learn from the material available in the commentaries in the judgments of various codes and my own practice. I might not be fully right. I I might be sometimes incomplete sometimes inaccurate. kindly pardon me for being so. Next time if at all I am given an opportunity again I would make an attempt to be complete accurate but what all statements I have made are to be understood by all of you to be something for you to ponder over to think to digest and then to make more research and do not take my statements per se as true to be quoted anywhere on record. Thank you once again. Once again a very happy Independence Day to all of you. Jay Hind. >> Uh thank you Mi G. And uh everyone is fible. Even we see that the judgments keep on changing. So whatever we say today and the law is ever evolving. It is always a challenge to take a catch up with all the law. But few questions we are taking since you have already explained. Does property inherited under a will retain the character of an ancestral property? Yeah. Unmute yourself. >> Yes sir. The question is whether the property that has come to a person by will retain the character of coparary property. There has to be let us now also understand that there are two ways that a person gets the property from his from another person. One is by inheritance that is an intestate succession. Another is testamentary disposition. If it is an intestate succession then the rights that each person derives are defined under all these enactments and the provisions which we have hither to been referring to. All that I have spoken to is in the case of an interstate succession. Interested succession is where a person does not leave a will. When a person executes a will and confers the right or title in the property which belong to him on another person, that person may not be even his direct lineal descendant. He may not even be his direct heir. He may not even be a person of the of that co-parenary. It can be anybody else. He can disen a person has right to disinherit his heir. And therefore it cannot be assumed in all circumstances that a testamentary disposition of a share in the copars property by a co-arsner would effect in favor of the propounder of the will the right in that property and he will treat he will take it as a culary property. That may not be the appropriate way of looking at it. To put it straight, the answer is no. >> What legally qualifies as an as an ancestral property or and how it is different from a self-acquired and joint family property? >> Yes sir. Yes sir. I began my uh discussion with this joint family property is the property which can be enjoyed by all the members of the of the family or joint property is that property which is acquired by two or more than two persons with their money or investments. However, in that larger body of the joint Hindu family or the undivided family, there is a narrower body called the copars which earlier consisted of the male members of the four generations from the propostors and now the daughters of such male members also are included in that. So the property which is which has come to these four members in the four generations from their grand greatgrandfather that property is ancestral property and only that property alone is to be assumed as an coparary property. However, there is an exception to this. With the utility of this nucleus of this joint family property, the ancestral copars property. If any member of the co-pari acquires another property and another property is that any member who is acquiring it by his own selfacquisition by his own money his own investment and puts that self-acquired property in the hotspot of the joint family then these two categories of properties are also to be treated as coparsary or joint family properties. Self-acquired property is that property which is acquired by a person by his own labor, by his own money, by his own investment without any reference or utility of the existing co-parsenary joint family or ancestral property. This seems to be the distinction between the two classes of properties. >> Can any instrument or consent decree between karta and his son change its nature? The The nature of the character of the property is defined not by the agreement in all circumstances between the members of the copars but is defined by the principles enshrined in law. Assuming that there is a severance of just status among the members of the joint family that severance of status alone is not going to change the nature of the property unless the property is actually physically divided among the members. Now the karta and few members of the co-parenary to the exclusion of other members of the copars it sometimes it could be a minor a justb born baby who is also a co-par because he has already got a right from his birth to the exclusion of that minor if the father kartha and the son kartha son gparsner they themselves only make an understanding or a consent decree or a written document to say that from today onwards this property will be a separate or individual property of each of That is not going to change the nature of the property. So far as that newborn child is concerned whose rights have already been vested in him by the virtue of his birth and he can at any point of time within 3 years from the date of his acquiring the age of majority challenge such a deed such a compromised decree and say that that would not bind him and he would still get a right as a co-parent in that property. uh kindly explain the relevancy of uh Hindu undivided family and copas and have do they exist simultaneously? >> Yes sir. A Hindu undivided family or in other terms it is joint Hindu family consists of all the members in the family who can be the parents, the grandparents, the uh children, daughters, the spouses of the male children and the adopted children everybody. The co-parenary at the same time when there is a larger joint family already existing. The co-parsenary includes all the male members and their female daughters and their daughters also which in other words excludes the spouses of those male members. So if the spouses are included then they are joint family. If the spouses are excluded then what remains is co-personary. Both of them will exist simultaneously in the same place having different rights. The spouses would get right in the property of their husbands. The female spouses would get right in their husband's property under section 8 or under section 8 of the Hindu succession act and whatever property they would get they would again pass it on to their heirs under section 15. This is the distinction between the two and they can simultaneously exist. >> M there's one question just check it out. Uh can we request uh tell any judgment as to how to count exact degrees? This is the point where people >> Yes. Yes. Yes. That's the main myth that that's the main difficulty that we all are getting probably and uh I'm glad that I am also asked to speak on this. Now I'm I will give an example. I think we will be able to understand it properly if we give an example. There is a person called a this person is alive now. He has a son called S. He is also alive. This S has got a son called GS. He is also alive. This GS has also got a son called GS. Now this is the first generation who is called the propositus. His second generation is the son. The third generation is grandson. The fourth generation is the greatgrandson. Now this greatgrandson wants a share along with his father his grandfather in the property which is held by this original propositus. This is permissible. Poor generations. What we are confused at probably is that now this person the first propostors whether he should get the property only from his father or should he get it from his grandfather also or should that property should have traveled from his great-grandfather to his grandfather to him. So to understand whether there is an ancestral property in the hands of this propos we need to know what was the nature of the property that he acquired from his parents from his father grandfather or great-grandfather. But once it is clear that he got what was already an ancestral property in the sense that he did not get the property under section 8 as class one heir to his father or he did not get the property which his father got under section 8 as a class one heir to his father. Then it should be very clear to all of us that this property has not went into the class of section 8 at all and has continued to remain as ancestral property in the hands of father, grandfather and great-grandfather and hence what he holds is ancestral property. Once he holds it as ancestral property there is a co-ary created with him and his three other generations. So you have very beautifully explained it >> the the judgment if at all you want to know about this is you will again have to read the judgment in the case of uh Vinita Sharma you will have to read one more judgment I have noted let me kindly give me a moment's time I will find it out which is that judgment there are few judgments of various high courts also which have explained all this fathers fathers father is what I have said I have referred to a 1937 privy council page 233 three which explains about the three generations of the uh property which should travel from the three generations and that is 19 pre1956. There is one more judgment of the Punjab and Hana High Court which has dealt with this very appropriately and that is in the case of uh Gurip K versus Gand Singh. This is a judgment rendered by the honorable high court of Punjab in the year 1964. Kindly note this. Gurep k versus gam singh. Hope I am able to be beneficial and useful to all the learned audience here. These judgments might throw some light. >> Uh so thank you uh Ami G. It was a session which is quite enriching. And tomorrow friends on the similar lines like we have taken new nuances evidence law common courtroom pract mistakes which the every lawyer must avoid. This is by Mr. Mano Sharma who is a former principal judge from Delhi. Do join us everyone stay safe, stay blessed and happy independence once again. Thank you.