Gifting of ancestral property has been a long-debated issue. Some time ago, a High Court had ruled that no part of an ancestral family property can be gifted away. The court, in a landmark order, while resolving the dispute over a gift, declared as void the document which said that a portion of an ancestral property was gifted 'out of love'. The court had opined that the 'coparcener' or co-heir had no power to gift a joint family property, unless he is the sole surviving legal heir.

The Hindu laws of succession and inheritance are usually governed by two major traditional legal treatise - the Dayabhaga school that applies to Bengal and Assam, and the Mitakshara which governs the rest of India. According to Mitakshara, 'each person on his or her (following the 2005 amendment giving a daughter equal property rights) birth acquires an equal interest with his/her father in the joint family property'. However, under Dayabhaga as long as the father is alive, he is the master of all properties whether ancestral or self-acquired.

The court noted that as per Mitakshara, a person can gift a portion of the family property only during certain eventualities - during distress for the sake of the family and for pious purposes. Property inherited up to four generations of male lineage - father, grandfather etc - is called ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner.

In ancestral property, the share of each generation is first determined and the successive generations in turn sub-divide what has been inherited by their respective predecessors. In order to give rights to daughters, the law introduced 'notional partition' whereby when a male Hindu dies after the commencement of the Act, (leaving behind female relatives and without executing a Will) his share in the co-parcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.

Also, if a father dies leaving self-acquired property his son will inherit it absolutely. The grandson cannot claim it as ancestral because it was inherited under the Hindu Succession Act. In every instance it should be determined if a property was inherited by succession (Section 8), survivorship (Section 6) or by testamentary (Will) succession.

Properties inherited from mother, grandmother, uncle and even brother are not ancestral properties. Property inherited by Will and gift is not an ancestral property. Selfacquired property can become ancestral property only if it is thrown into the pool of ancestral properties and used in common.

Courts have held that so far as moveable ancestral property is concerned, a gift out of affection may be made to wife, daughter and son, provided the gift is within reasonable limits. A gift of the entire or almost the entire ancestral moveable property cannot be a gift from affection. With immovable ancestral property, however, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has the power to make a gift of ancestral immovable property within reasonable limits for pious purposes only.

Source: 18th February 2011, TOI