IS WILL FOR ANSCETRAL PROPERTY ILLEGAL?

Meaning of ancestral property-An ancestral property means a property which is devolved upon
heirs by the 3 generations above them; father, father’s father or father’s fathers’ father .It passes to
the next three generations.

Meaning of will-A will means a document in which a person specifies the method to be applied in
management and distribution of properties after his death.

The basic principle involved is that the property should be four generations old. The right to use
and acquire property is accrued by persons through birth itself. The division of property is per
stripes i.e. that share of one generation is calculated first than the share of successive generations is
subdivided according to share of their predecessor. These basic elements are for governing majorly
the Hindus.

If A inherits property, whether movable or immovable, from his father or father’s father, or father’s
father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s
son’s son in existence at the time when he inherits the property, he holds the property as absolute
owner thereof, and he can deal with it as he pleases . A person inheriting property from his three
immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons
and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold it, as his
absolute property.”1

Now answer to the question is that that will to ancestral property is not entirely illegal .That means
when a coparcener acquires his share in ancestral property than he can make a will to that share
and bequest it. However will shall be executed after the death of the testator and if the coparcener
before acquiring a share makes a will than that will be illegal. Share in ancestral property will be
inherited by coparceners. So he can make a will to his share in ancestral property. As whatever he
acquires is his share now and he can dispose his assets according to his wishes.

Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th January, 2016 Hon’ble
Mr. J. Valmiki Mehta of Delhi High Court ruled-

If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at
the time of the death of such a person, inheritance of an immovable property of such a person by
his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as
a self acquired property in the hands of the successor and not as an HUF property although the
successor(s) indeed inherits ‘ancestral’ property i.e. a property belonging to his paternal ancestor.

Thus, the ancestral family property ceases to be ancestral family property in the hands of the
various persons who have succeeded to it as they hold the property as tenants in common and not
as joint tenants.

1
In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289