• Division of ancestral property

My parents have three children: two daughters and one son. I am the son aged 57 and my elder sisters are respectively aged 61 and 59.   My eldest sister was married in 1975, but she is now a widow.  My second elder sister is unmarried and she is a senior state government officer who will retire next year. My father is 86 years old and mother 80 years old. My father has inherited some area of land in our ancestral village in Mandya district (Karnataka) after sharing it with his brothers in 1989. The property is in his name and he has not taken any action to partition the land to his children but has included it in a will along with his house that is a self-earned property. Now that he has dementia, he will not be able to do anything.  Among the siblings, my second sister is not cooperative.
My questions are as follows:
1. How to get my share of the property with the present condition of my father and one of the sisters not ready to cooperate?
2.Since my eldest sister was married in 1975, will she get an equal share of the ancestral property?
3. Since my father has included the above ancestral property in a will along with this self-earned property, should we have to wait till his death to get our share of the ancestral property?
Asked 8 days ago in Property Law from Greater Mumbai, Maharashtra
Religion: Hindu
1) you have to file suit for partition for division of property by metes and bounds 

2) your eldest sister would have share in ancestral property 

3) partition suit takes years to be disposed of 

4) better wait till father demise for division of property 
Ajay Sethi
Advocate, Mumbai
37871 Answers
2122 Consultations

5.0 on 5.0

Hello,

You will have to file a suit for partition, it will take years for the court to decide the case of partition.
Also the elder sister will have share in the ancestral property. I would advise you to wait till the death of your father so that the things can be done easily eventually. 

Regards 
Anilesh Tewari
Advocate, New Delhi
3910 Answers
49 Consultations

5.0 on 5.0

for the time being forget about will, for the shake of argument.
if your father died without will then you three brother ans sisters alongwith your mother will get equal share of properties left by your father. and after demise of your mother you three will get equal share of the all properties left by your parent.
if your father dies leaving a will, then the property will be divided as per will upon getting probate of it from the court.
it will be equally applicable if your mother dies leaving a will.
now your father is suffering from dementia so you have not other option but to wait till his disappearance.  
Manish Paul
Advocate, Kolkata
134 Answers

4.9 on 5.0

Hi, you have to file suit for partition of claiming your 1/4th Share in the property.

2. As your father is still alive and there is no prior partition in the family so daughters have equal right in the ancestral property. 

3. As far as Will is concerned, the Will come into existence only after the death of the testator and your father can't include the ancestral property in the Will and he can include the self acquired property. Your right in the ancestral property will be absolute and for ever.
Pradeep Bharathipura
Advocate, Bangalore
4444 Answers
188 Consultations

4.3 on 5.0

Hi, it is advisable to file a suit for partition and declaration in court to claim your share of property 
Hemant Chaudhary
Advocate, Gurgaon
1515 Answers
5 Consultations

4.9 on 5.0

This will was executed in whose favour?

This is not an ancestral property because upon partition and the transfer of this property in your father's name, the same assumed the nature of self acquired property. If your father dies interstate, this will pass on to you, your mother and your 2 sister in equal shares. Thus, each of you will inherit 1/4th of this property.
Vibhanshu Srivastava
Advocate, Bangalore
2295 Answers
8 Consultations

4.9 on 5.0

You'll have to wait till his death. None of you can claim an inch of this property till the time he's alive 
Vibhanshu Srivastava
Advocate, Bangalore
2295 Answers
8 Consultations

4.9 on 5.0

1. How to get my share of the property with the present condition of my father and one of the sisters not ready to cooperate?
Father is the absolute owner of his property. So he can alienate his property as per his wish. You have no right over father’s property. The properties mention in the queries are not comes under ancestral property. 

2. Since my eldest sister was married in 1975, will she get an equal share of the ancestral property?
If the father died interstate without creating any will or document with regard to the property , your sistaer has equal share in the property .

3. Since my father has included the above ancestral property in a will along with this self-earned property, should we have to wait till his death to get our share of the ancestral property?
Ancestral property is defined as the property whose title has not changed for last 4 generations i.e. from great grandfather to great grandson without being interrupted by any partition/settlement/sale/gift deed or will. If it is not so, then it is not an ancestral property.

You will wait 
Ajay N S
Advocate, Ernakulam
2527 Answers
33 Consultations

5.0 on 5.0

First of all he can write will only as to his share in the ancestral property.
Sorry to say buy yes you should wait for the death of your father and after that you can file probate petition in court of law.
Laksheyender Kumar
Advocate, Delhi
221 Answers

4.9 on 5.0

As you have explained, the partition taken place in the year 1989 and therefore the property inherited by your father becomes his self property and he has all the rights to dispose the same as he wishes along with his self earned properties.
Rajashekar
Advocate, Bengaluru
134 Answers

4.8 on 5.0

1.  The property is actually not ancestral because once it was partitioned among the brothers, it lost it character of ancestral even it is presumed to be one .
In my opinion, this property might have belonged to yor grandfather which was partitioned among his sons.
If yes, then it cannot be termed as ancestral property.
Therefore the property bequeathed by yor father through a Will is absolutely valid, provided he had written it while enjoying a sound mind of health and his  signature duly attested by two  witnesses.
Any attempt to force your father to cancel the will especially while he is affected by dementia shall be invalid  and illegal in law.
Also nobody has a right in it nor can claim a share in it as a right.
If your unmarried sister is not cooperative you canot force her to cooperate for dividing the property which belongs absolutely to your father at least during his lifetime.




2.  If this property has not been divided by yor father then neither your sisters nor your other or you can claim any share in the property as a right during your father's lifetime.




3.  Basically your notion about the ancestral property is incorrect. The property was inherited by yor father as his share hence he is the absolute owner of the same, nobody can claim any share as a right on any  basis during his lifetime.
The will what he has written will prevail after his lifetime if the same has not been revoked during his lifetime.


T Kalaiselvan
Advocate, Vellore
27807 Answers
289 Consultations

5.0 on 5.0

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