Separate Property

Introduction

• The Hindu Succession Act, 1956 regulates the partition, which is the process of division of property.
• Upon the death of an individual, his/her property, title, debts and obligations may devolve upon the heir.
• An heir is defined as an individual who is legally entitled to inherit some or all of the estate of another person who dies intestate.
• There are two types of partitions under the Hindu Succession Act,1956, self-acquired property and ancestral property. Further succession itself is of two types: Testamentary Succession and Intestate Succession.
• The property inherited by a Hindu from his father's father and father's is ancestral property.
• Property that the owner acquired using his own resources is his self-acquired property, a property that he inherits from his family members is an ancestral property.
• A self-acquired property becomes an ancestral property after a point. The reverse is also true.

Separate Property or Self-Acquired Property

• Self-acquired property refers to any property of a person acquires through efforts without anyone else’s help. This includes things like land, businesses, and personal belongings.

Types of Self-Acquired or Separate Properties

• Property acquired by own exertion and not by joint labour with other members of family, without detriment of family property.
• Property inherited by a Hindu from anyone other than his father, grandfather or great-grandfather.
• Property obtained as his share in partition of a joint family property, provided he has no issue (Issue in family law means children. If children are there, then they would also obtain a right in the property by birth as prior to partition it was part of Joint Family Property. After partition the person along with his sons would constitute a coparcenary).
• Property devolving upon sole surviving coparcener – no widow in existence who has power to adopt or having child in womb.
• Property obtained by gift or will.
• Governmental grants.
• Joint Family Property lost and subsequently recovered without the help of joint family funds.
• Gains of learning.
• Income from separate property.
• Marriage gifts.
• Income from Joint Family Property allowed to a person for their maintenance.
• Benefit of insurance policy–premium paid from Joint Family funds but for benefit of the intended person only.

Rights regarding Separate Property

• Right to Transferring Self-Acquired Property:
  • One can transfer self-acquired property to anybody. In the case of ancestral property, all coparceners accrue their share in the property by birth and it’s quite difficult to deny anyone their right in their ancestral property.
• Right to Selling Self-Acquired Property:
  • The owner of self-acquired property can sell such property whenever he wants to sell but in the case of ancestral property, the consent of all the family members is required and it takes a lot of effort and time, to sell ancestral properties rather than selling the self-acquired property.

Who has Rights on Self-Acquired Property?

• Sons and daughters have the first right (as Class I heirs) over the self-acquired property of their father if he dies intestate i.e. without leaving a will and since both the son and daughter are also coparceners, they also have the legal rights to get shares in ancestral property.

Can Self-Acquired Property be Challenged?

• Yes, one can challenge it. But before that some aspect has to be seen that is whether property was self-acquired property of father’s property and if so then father has absolute right to execute will under Section 30 of Hindu Succession Act,1956.

Conclusion

One of the most vexed question under the Hindu Law, is, whether a property acquires the character of self-acquired property or ancestral property. This is important because, if the property assumes character of self-acquired, then it falls into the hands of his sons as not coparcenary property but would devolve upon on them in their individual capacity.

The Hindu Succession Act, 1956, states that any property that is acquired by a person himself, either by way of his own resources or by way of division of the ancestral property, is his self-acquired property. An ancestral property turns into a self-acquired property when it is divided among the family members who have raised a claim to it. As soon as the property division is documented, the property becomes self-acquired.