• Ancestral property

I am Ms Abhaya Joshi from Yavatmal Maharashtra.An ancestral property(10000 sq.Feet Plot in the heart of City) is on the name of my mother,who is expired on 17th April 2017.She didnot make any Will.We are three sisters.After the death of my mother,my father took over that property,which is the ancestral one,on his name.Because I got married without his consent,thirty years back,he excluded my name from the Will ,which he prepared about that ancestral property,which will be effected after his death.What legal options are left with me, in this scenerio,before and after the death of my father?My email id is [deleted]
Asked 6 years ago in Property Law
Religion: Hindu

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20 Answers

Since the proeprty was in the name of your mother she will e considered as its sole owner and on her death it will be inherited by you ,your sisters and father in joint share.

So your father could not have claimed her sole right over this.

What he did was wring and beyond the purview of law and hence you can still challenge his actions aad seek your share in the proeprty as well.

To do so file a suit for declaration , partition and injunction to you are given your undivided 1/3rd share in the proeprty.

Devajyoti Barman
Advocate, Kolkata
22871 Answers
492 Consultations

5.0 on 5.0

File suit for partition for division of property by metes and bounds

2) on mother demise you have one fourth share in property

3) father can only dispose his one fourth share by will

Ajay Sethi
Advocate, Mumbai
94922 Answers
7572 Consultations

5.0 on 5.0

You have an option to challenge the will which excludes you from the property and to seek a partition and separate possession in the ancestral property. You must file a civil suit before the court. You have rock solid case to get share in the ansestral property beacuse your father has no right to execute will beacuse the your father has not received the property from his ancestors but it is the property of your mother.

Ujwal Rajan Phasate
Advocate, Nagpur
37 Answers
4 Consultations

5.0 on 5.0

Father can only dispose of his share in property by will

Ajay Sethi
Advocate, Mumbai
94922 Answers
7572 Consultations

5.0 on 5.0

Dear Madam,

The rules that is section 15 of Act is very clear:

HINDU WOMENS PROPERTY…. HOW IT DEVOLVES

A hindu woman holds the property as an absolute owner and now she can dispose off the property as her own property. The concept of ancestral property does not apply to a property held by a hindu woman. Your maternal grandmother (naani) can will the property to anyone. However, if she dies intestate (without a will) then the property will devolve as per the rules of succession in Hindu Succession Act, specifically, section 15. In that case, the property goes to the legal heirs of the woman on her father’s side if she received the property from her father’s side and to her husband’s side if she received the property from her husband side.

Section 6(5) in The Hindu Succession Act, 1956

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:— "6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.

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Kishan Dutt Kalaskar
Advocate, Bangalore
6136 Answers
487 Consultations

4.8 on 5.0

You have the equal share rights in the property. But need further details like when was WILL excuted and registered need date.

Meaning of Ancestral property:-

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.

=======================================

The manner of Distribution of Property among heirs of female Hindu

Section 14 of The Hindu Succession Act gives to a female Hindu an absolute title over the properties which under the traditional Hindu law she held as a limited owner. Section 15 of the Act delineates the heirs of a female Hindu and the order in which they are to succeed to her property if she dies intestate. Section 16 of the Act provides the manner of distribution of a deceased female Hindu among her heirs.

Rule 1 of section 16 provides:

Rule 1.-Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

Therefore, if A, a Hindu female, dies intestate and after her death she is survived by the son of her husband and her own mother. Now, the son of her husband being an heir of her husband figures in entry (b) of sub-section 1 of section 15 and the mother figures in entry (c). As per Rule 1, those in one entry shall be preferred to those in succeeding entries. Therefore, heirs in entry (b) shall be preferred to those in entry (c). Hence son of A’s husband shall inherit the property of A to the exclusion of A’s mother.

If in the above example, A is survived by only her father and mother and no one else, then A’s property shall devolve upon both of them and both shall inherit equally as both of them figure in entry (c) and according to Rule 1 heirs included in the same entry shall take simultaneously. Therefore if in this example, A was survived by any two or more people figuring in the same entry like her own son and daughter, or if she does not have any children of her own, then the children of her husband being his heirs, or the heirs of her father or heirs of her mother, if by operation of law A’s property is to succeed to heirs mentioned in any single category and where they are more than one, they shall inherit equally.

Ganesh Kadam
Advocate, Pune
12932 Answers
256 Consultations

4.9 on 5.0

Consent to the demise of your mother, this property devolved in equal shares, upon you 3 sisters and your father.

File a partition suit seeking your 1/4th share in this property.

Your father is free to bequeath his1/4th share in this property by means of a will.

Vibhanshu Srivastava
Advocate, Lucknow
9625 Answers
303 Consultations

5.0 on 5.0

Your father while bequeathing his 1/4th share could have very well excluded you from his will.

Vibhanshu Srivastava
Advocate, Lucknow
9625 Answers
303 Consultations

5.0 on 5.0

Hello mam , it is advisable to file a civil suit for declaration and permanent injuction in order to claim your share in the property

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

No will can be made for an ancestral property.

By virtue of law you have a right on the ancestral property of the share that was with your mother.

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

File a partition suit to claim your 1/4th share after the death of your mother and challenge the will so made.

Regards

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

Though the property is from maternal side which does not give you any right before death to ask for the share, but yes after her death if no will is there then that should be give to you also as a heir.

Your father can’t make such will.

Fight for your right.

Sanjay Baniwal
Advocate, South Delhi
5474 Answers
13 Consultations

5.0 on 5.0

You can make the will for title you have in your name. A will for contingent assets is not advisable.

First of all you need to file a title suit for the ancestral property in which you have share and as soon as you get the title you can make the will as per your choice.

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

Hey Young lady don't worry.

As it is the ancestral property from your maternal side and it is in your mother's name, who didn't make any will, you can claim for your share by filing a Civil Suit.

Your father doesn't have any right to exclude you from your maternal side ancestral property.

Though your father made a will (which is bad in eyes of law). For your information, Will takes it's own effect after the death of a person who makes it.

So do hurry and appoint any learned advocate and fight for your share. Best of luck.

Sheetal Pawar
Advocate, Mumbai
21 Answers
1 Consultation

4.8 on 5.0

1. The property originally purchased by your mother is not ancestral in your hands.

2. On the demise of your mother her property devolved through intestate succession on her widower and all children equally. So your father's legal competence to make a bequest was to the extent of his share only and not beyond it.

3. The remedy for you is to file a suit for declaration to declare the will as illegal and seek your share in the property through partition.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

With the advent of the hindu succession law 2005, daughters by birth are coparceners and equally entitled to the share as that of son. You have a legal remedy.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

Before the execution of will you can file a suit asking for partition of suit in the maternal property, you have right to claim your rights

after the death of your father also you can challenge the will and get the property partitioned as per the Indian succession act.

Anwar Zaidi
Advocate, Mira Bhayandar
231 Answers

4.5 on 5.0

The property that was on your deceased mother's name upon her intestate death shall devolve equally on all her legal heirs or successors in interest.

You have a right for a legitimate share in your deceased mother's property.

Your father cannot write a will on the entire property, he can transfer his share of property out of your mother's property to anyone of his choice but he cannot deny your rightful share in the property.

You can file a partition suit and seek separate possession of your respective share in it.

T Kalaiselvan
Advocate, Vellore
85123 Answers
2215 Consultations

5.0 on 5.0

Can he make such type of Will for the disposal of the ancestral property from my maternal side,of which I am also an heir consequent upon being one of the daughters of my mother.

Since your father is a legal heir to your deceased mother, he is entitled to a share equal to that of other legal heirs of your decesed mother.

He cannot avail the entire property.

You can very well file a partition suit and claim your rightful share in it with separate possession.

T Kalaiselvan
Advocate, Vellore
85123 Answers
2215 Consultations

5.0 on 5.0

Yes, your father too has a share in the property/properties left behind by your mother upon her demise.

Vibhanshu Srivastava
Advocate, Lucknow
9625 Answers
303 Consultations

5.0 on 5.0

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