Can I make a will for the ancestral property?

We have often heard the term ancestral property and are also familiar with the disputes arising in the families owing to it. There are also several cases where the families or individuals have resorted to illegal practices to claim a share of the ancestral property. So, what exactly is termed as ancestral property and can anyone make a will for it? How is it distributed or divided? Here is everything you need to know about all these questions.

What is will?

In simple legal terms ‘Will’ can be explained as a legal instrument, which a person, also referred to as a testator, expresses in written records his intentions as to how will the distribution of his property will be done after his death and who will be the successor. We can also say that it is a legal document which helps in the devolution of the deceased’s property as per his will.

What is Ancestral property?

As per the Hindu Law, an ancestral property can be termed as any property acquired by one's great-grandfather and passed on to the heirs by the virtue of birth for at least three generations. There are also certain stipulations which are considered while declaring a property being an ancestral property.

1. The property should at least be four generations old
2. The property should not have been divided by any of the previous generations
3. The property should be passed on by fathers, father’s father to the current generation.
4. The property acquired from the maternal side or brother and uncle cannot be termed as ancestral property.

This also clarifies that

1. If the property is divided by any of the previous generations, that share will be counted as their self-acquired property automatically.
2. The right on the ancestral property is decided by birth.

As per the Hindu Succession Act, 1956 the daughters have an equal right in the property at par with the male siblings. Initially, in the case of ancestral property, if the father has died before 2005, the daughter does not have any right in that property. However, after the amendment in the act, the daughters too are termed as coparceners from birth.

Can a will be made for the ancestral property?

The ancestral property is first divided in the first generation and the successive generations have to subdivide their share. As far as the question of a will for an ancestral property is concerned, the same cannot be made. Once a person receives a share in the ancestral property after division, he may make a will for that share.

Judicial Precedents

In case of Ranbir Singh and others v. Kartar Singh (2003), the Supreme Court ruled that the maternal property in hands of the grandson cannot be termed as ancestral property.

Similarly, in case of Rameshwar Singh and Ors v. Harinder Singh and Ors (2007), the court declared that the ancestral property owned by mother cannot be inherited by the son till the time she is alive.

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