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Ancestral property is a property which is passed on to a family through four generations without partition or division in any way. Therefore, for a property to be considered ancestral, it must be inherited by grandfather and passed on by him to his son and so on without being divided or divided at any point. The laws and rules relating to the inheritance and division of ancestral property in India are decided by the various land personal laws.

The Hindu Succession Act, 1956 establishes the rules of succession and partitioning for Hindus in India. Under the Hindu rules, the coparceners accrue the rights to ancestral property at birth. Besides, the share of each generation, which is subdivided for successive generations, is first calculated. For Muslims in India, the Muslim Personal Law (Shariat) Application Act, 1937 decides division and succession. The laws determine issues of intestate succession, transfer of property as a gift, Muslim women's special land, etc.

What kind of properties can be partitioned?

There are two types of property that can be partitioned according to the Indian Property Party Laws:

1. Self-Acquired Property

Self-acquired property is the property that a person acquires with his own hard-earned money, and its forefathers do not inherit. Besides, any land obtained by a gift or will is often considered a self-acquired land. 

Self-obtained property during the lifetime of the person who has obtained it cannot be partitioned. During his/her lifetime the acquirer will make a 'Will' as to who he wants to give his property. If the property's owner dies without leaving a will, the land will be passed on to its Class 1 heirs.

2. Ancestral property 

Any property the forefathers of an individual inherit is called ancestral land. A property like this has to be four generations old. A person born in that family has an interest in the land, which means that he has inherited the land in the family by his birth and that property can be split up.

Partition of Ancestral Property through Partition Suit

A partition claim for the division of ancestral property can be brought before a court in India. A partition suit is brought if all the legal heritages of an inherited property do not agree on the terms of the land division. The case must be brought before the Court which has jurisdiction over the area in which the property is situated. If the suit has been filed, the Court takes action to assess the claim on a certain property that the individual bringing the suit has on it. If this applicant's rightful claim has been identified, the Court does not perform further investigations and allocate individual ownership of the property to the co-heirs or co-owners of the property. A Legitimate Heir Certificate on the ancestral property will be considered to be sufficient evidence of your rightful claim.

Partition of Property through Partition Deed

A partition deed is executed to divide a jointly owned property between the co-owners separately. The property is distributed to each of the co-owners by their rights in the land, i.e. the portion of which they have the power. Upon execution of a partition deed, each co-owner becomes the absolute owner of the share allocated to him/her. 

To be useful in law a partition deed must be performed on a stamp paper by paying the necessary stamp duty. It should also be registered at the Sub-Registrar's office with applicable jurisdiction.

Partition of Property through the Family Settlement Agreement

The co-owners of the joint family property may execute a family settlement agreement when they decide to divide the property between them in peace without entering into any court dispute. However, it would be prudent to obtain Legitimate Heir Certificates for each of the heirs to ensure that the property partition is carried out smoothly.

Property Partition Under Muslim Law

The Muslim law provides for land partitioning in the following way:

• Sharers of Property: Property sharers shall have the right to a specified share of the inheritance. In the case of a husband's property, his wife(s) are the owner in his property and the inherit one-sixth of the entire property.

• Residuaries: Residuaries are not entitled to a fixed share but are entitled to a portion of the property after the shareholders have inherited their interest. A Muslim man's children can be considered a residuary in the property of their parent. The remaining five-sixth of the property is distributed among the residuary property, which also includes the daughters irrespective of their marital status. The land is, therefore divided between the sons and the daughters in the ratio of 2:1.

• Distant Kindreds: Distant Kindreds are those individuals that are related by blood but do not fall into the sharers or residuary group. They have no ipso facto rights over the property but can gain the same right after it has been proved before a Court of Justice.

Right of Women in Family Property Partition

Recently, Hindu women have gained ancestral property rights equal to that which men possess. The 2005 amendment to the Hindu Succession Act, 1956 provided equal rights over ancestral property to both married and unmarried children. The amendment gave daughters the same reasons, roles, obligations and disabilities that were previously limited to children. This right was therefore limited to those women whose fathers died after September 9, 2005. The Supreme Court introduced more amendments in favor of women's rights. The Supreme Court expanded the applicability of the amendment to all women irrespective of whether they were born before or after 1956, and they are now entitled to the benefits under the 2005 amendment.