• Will of ancestral property

My father has bequeathed ancestral property to second wife daughter by will on 4.12.1995
1 undivided northern side half of 4.8 acres
2 undivided Eastern side half of residential house
3 undivided full extend of 4 items
4 undivided half of remaining 5 items

all the property are ancestral joint property. No partition was effected till date. Father expired on 7.11.2002
first wife expired have one daughter and one son
second wife expired only one daughter

legal opinion requested
Asked 7 years ago in Property Law
Religion: Hindu

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24 Answers

What basis you say it is ancestral property ?

2) father can only bequeath his share in ancestral property

3) file suit for partition to claim one third share in ancestral property

4) seek injunction restraining sister from selling the property

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

Will of 5 properties can be disputed by you if it is ancestral property

As mentioned father can dispute only his share in ancestral property

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

The issue as to whether father can bequeath property by will would not be gone into in testamentary petition

The court does not decide title of the property in probate petition

You have to in partition suit claim share in property

Take the plea that father could not bequeath the various properties in will as it is ancestral properties

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1) daughter would have to file for probate if she is claiming under will . You can oppose grant of probate . It would be converted into testamentary suit

2) if you have filed partition suit both suits would be clubbed together

3) Under sec. 222 of the Indian Succession Act, jurisdiction of the probate court is limited to a scope that the probate court can declare that will is genuine or not and on genuinity of the will, grant a certificate of a probate. A probate court cannot go beyond that and decide that since the testator had no title over the property and since that property is bequeathed, will is not genuine. Learned Counsel for the respondent Mr. Patel has cited a decision of Supreme Court - Ishwardeo Narain Singh Vs. Kamta Devi and others - reported in AIR 1954 S.C. 280, wherein in para.2 Hon'ble Supreme Court in clear terms observed that, "the dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no principle be supported and indeed learned counsel appearing for the respondent has not sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1) father cannot bequeath by will 5 properites to full extent nor 2 proeprties

2) since it is ancestral property father cannot bequeath entire properties

3) since you ahve already filed partition suit you cna claim your share on basis it is ancestral proeprties and father could not by will have bequeathed entire property

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

for an expert opinion it is necessary to peruse your entire case papers .

In (1986) 3 SCC 567 (supra), the Hon'ble Apex Court has held as follows:

"15. It is clear that under the Hindu Law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him.

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

n Yudhister ((1987) 1 SCC 204), this Court observed:(SCC pp.210-11, para 10) "10. This question has been considered by this Court in CWT v.Chander Sen ((1977) 108 ITR 417 (Guj) where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him"

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

if by birth son acquires share in ancestral properties it follows that father cannot bequeath entire ancestral properties .

you dontr need SC judgments for said proposition

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. If it was an ancestral property you also had share in it for which your father can not bequeath the entire ancestral property to any body.

2. The said will was void at law.

3. However, ancestral property is defined as a property title of which flows for four generations i.e. from great grand father to great grand son without any interruption i.e. sale/settlement/partition deed or will.

4. If the said property is an ancestral property as per the above definition, your father has no right to bequeath the same to any body.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

If the properties are ancestral properties as explained in my earlier post, your father can not bequeath it or any part of it to any one.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Since it is an ancestral property, you also have share in it for which it can not be divided without giving you your share in it.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. You have rightly filed the partition suit claiming partition of your ancestral property.

2. It is a well settled proposition of law that a person can convey exactly the same title of the property which he owns and in this case, your father does not own the entire ancestral property for which his said will is void at law.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

As mentioned earlier father cannot bequeath all ancestral properties by will

2) I have quoted SC judgments wherein it had been heirs son acquired share in ancestral property by birth

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. There is nothing called 'as if divided' in cases related to properties.

2. If properties are divided, it should be done through registered deeds without which it will not be considered as legally divided.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. It is well settled proposition of law that no body can convey better title than what he/she is holding for which you can have several citations by google searching.

2. Specific search fitting your case will require time.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

It is well settled as per law that no body can deal with properties which the does not own. There will be various cases settled based on this principle of law which can be found in the net.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

all the property are ancestral joint property. No partition was effected till date. Father expired on 7.11.2002

first wife expired have one daughter and one son

second wife expired only one daughter

Ancestral property means not it belongs to your grandfather.

It should have remained in the same manner as it was purchased or acquired for three generations and it becomes ancestral property i the hands of the fourth generation.

Is the property falling under the said definition.

If the property was inherited by your father from his father then it becomes his absolute property which can be bequeathed in the manner as your father decided.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

daughters marriage were held before 1986

whether the will of first two properties northern side half and eastern side half of undivided property is correct

will of full extend in respect of five properties are correct

i am the only son

The will shall be based on the title to the property.

If the testator had absolute and marketable title to the property bequeathed in the will then it is absolutely valid and enforceable in law.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

will in respect of 5 items bequeathed in full by will is valid or void

in respect of first two properties will as if divided is correct.

All the ancestral properties are undivided till date the patta is a common patta with the name of all the ancestors. The lands are not partitioned even in respect of my father. still it is undivided one with more than 15 names in patta.

The contents of your post are very vague which may not yield correct or proper opinion by experts here.

You can contact a local lawyer and produce the relevant papers for getting a proper legal opinion.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

The father can bequeath his interest by will of ancestral property. In this will father has bequeathed entire property even that does not belong to him.

The property bequeathed by the testator should belong to him or he should have marketable title.

In fact the son derives his right in the property only through his son.

Can you pl give some citations that undivided ancestral property can not be bequeathed by will.

There is no law forbidding an undivided property canot be bequeathed by a will.

Already i have filed partition suit in fast track additional district court and the court have decided as son by birth half share is allowed to me. As per will the dependent can get half share. but my doubt is as per will father has bequeathed entire ancestral property of 5 items and two items with boundries as if divided. if we go by the wordings of will 5 items are to be given in full to the dependent. What are the citations in such cases. i am ready file appeal suit high court.

As opined earlier, your questions are very vague.

There is no order copy to opine about the judgment

There is no will copy so that an opinion can be given on that too, at least the recitals could have been furnished.

Preferring an appeal is your right, if you feel aggrieved by the decision, you may go ahead.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

i need your answer only for this only. Already i have informed all of them are undivided with undivided patta with more than 15 eligible

You are again and again coming with vague questions only.

Without knowing the judgment details or the contents of will any opinion given on the basis of your questions shall be a misguidance.

You can take a legal opinion from a different lawyer in the local and get his opinion after producing all the relevant documents/papers before him.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

is it possible to mention a few supreme court judgements on the above lines. Charges for your advice to my case will be paid. I need an expert opinion on my case.

You can book a private consultation with any of the lawyer and personally discuss the issue and get clarified all the doubts in this regard

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

to the above two opinions, i need supreme court citations only for the above two opinions.

You can get the supreme court citation either by searching in the internet or by contacting your own advocate who will help you get one.

You can even avail the services of any advocate of this forum for this purpose.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

i am the only son. all the properties are ancestral. father bequeathed by will 5 properties in full. can i have few supreme court judgements on the above lines

You may repeat the same questions in any manner but for getting the desired citations, you may engage the services of any lawyer of this forum privately.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

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