• Ancestral/self acquired property

I am asking on behalf of someone whose needs assistance. A father of four daughters had property in Haryana. He died around 2002, i.e. before the year 2005. He left his property in favour of two daughters and did not leave anything to his other two daughters under the undue influence of his other daughters. The two daughters who got no inheritance from their father challenged this and moved court. They lost in the district court. They moved the High Court. In the High court again they lost the case. However, through out the arguments took place based on the assumption that the property is self acquired property. The High Court order clearly states that never did the parties ever argue that the property is ancestral. The High Court order wrongly states that the Will makes a reference to the name of the disinherited daughter.The matter went up to the Supreme Court and the Supreme Court said that the High Court order is right.

The woman who lost the case claims the property is ancestral since its been coming down from many generation and the property papers if pulled out from the land records section will show that this is coming from ancestors. That her lawyer never brought this to the attention of the judge. It is to be noted that the Will was never probated.

questions:

1.Since the woman is from a financially weaker section and the property is acres of land, is it possible to reopen the case if the papers of the land shows that the land has come directly from ancestors and that she has a right in the land. Will she have to move the Supreme Court for this purpose and if yes then what should be the prayer.

2.Just because the father inherited the property from ancestors does it become ancestral property.

3. Does the father have a right to treat such ancestral property as self acquired property just because he had four daughters and no sons. Does it make a difference that the father passed away before 2005 as I am told that the law changed subsequent to 2005. 

4. Even if its not mandatory to have the Will probated in normal circumstances, but when there is a dispute on the Will, does not the law require the Will to be probated.

Many thanks
Asked 4 years ago in Property Law
Religion: Hindu

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9 Answers

Hi, since the Supreme Court is the highest appellate authority and it has already passed an order , there is nothing that can be much done in the case now .. Further , if the property was ancestrol it's record should have been exhibited in the lower court , which was not done by your lawyer .. However , you can file a reveiw petition before the judge who passed order in Supreme Court .. You can contact me for further doubts .. Thank you

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. See in case the property is partitioned in inheritance it lost its nature as ancestral property also the daughter based on inheritance has no right before 2005 on ancestral property. So since it was nature of acquired property it can be disposed at will of owner.

2. Ancestral property is that which goes back to 4 generation undivided.

3. Yes the 2005 amendment in hindu succession act is applicable prospectively that is of daughter and father both are alive on 9 sep.2005 then only daughter has right as held in prakash vs. phulawati.

4. In the case the executor or beneficiary shall apply for probate also the validity and legitimacy of will need to be challange just dispute on property does not illegitimate the will.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) there is no pleading that property is ancestral .

2)property which has remained undivided for 4 generations is ancestral property

3)if father died before 2005 daughters have no share in ancestral property .

4) probate of will is not mandatory in haryana . if there si dispute between parties application has to be made for probate

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

Probate is not required in Delhi. And Property being ancestral not brought on record than, your mistake not of Court.

.Since the woman is from a financially weaker section and the property is acres of land, is it possible to reopen the case if the papers of the land shows that the land has come directly from ancestors and that she has a right in the land. Will she have to move the Supreme Court for this purpose and if yes then what should be the prayer. --- File revision in supreme court with evidence that property is ancestral and now only came in acknowledge and request for remand back, hear afresh, still daughter`s have no share in ancestral property b4 2005.

2.Just because the father inherited the property from ancestors does it become ancestral property. - from great grand father and intestate succession.

3. Does the father have a right to treat such ancestral property as self acquired property just because he had four daughters and no sons. Does it make a difference that the father passed away before 2005 as I am told that the law changed subsequent to 2005. ---- Even if property is ancestral, daughters have no right in ancestral property, before father`s death. Court rightly held self property of father.

4. Even if its not mandatory to have the Will probated in normal circumstances, but when there is a dispute on the Will, does not the law require the Will to be probated. --- Whoever disputes the WILL, can approach court . seek partition than other party will prove WILL.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Though there is specific time period of 90 days for preferring an appeal delay in preferring an appeal can be condoned if the delay is properly explained.

2. Since it is his ancestral property he can pick an choose among his legal heirs and give this property only 2 of his daughters depriving his other 2 daughters.

3. No, he can not.

4. If taking of Probate is optional the under no circumstances it is compulsory.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Case is being confused in much way it is ok that property is being Inherited however father can always will his own property and also his own share in the Property

However one file recall application in the high Court and property will be transferred in accordance to the will

However since father has inherited the property may be divided among other cousins but she will hold her father's full share in accordance to the will

Amol Chitravanshi
Advocate, Delhi
279 Answers
1 Consultation

4.0 on 5.0

1. Yes, but do this only if you have credible material to demostrate this in the SUprmee COurt. File a review petition and seek a stay on the supreme court judgement passed agaisnt this lady.

2. No.

3. Does the father have a right to treat such ancestral property as self acquired property just because he had four daughters and no sons? Ans. No.

Does it make a difference that the father passed away before 2005 as I am told that the law changed subsequent to 2005?

Ans. No.

4. probate proceedings are not compulsory in the State of Delhi

Vibhanshu Srivastava
Advocate, New Delhi
9427 Answers
245 Consultations

5.0 on 5.0

1. The property was transferred to two daughter alone by executing a testamentary disposition by the testator.

It is an accepted fact that the testator had a clear and marketable title hence the transfer or the bequest made by him in favor of only two daughter s has been held to be valid by all the courts including the apex court.

There is no question of proving before the court taht this is ancestral proeprty at this stage when this was not fought on that grounds before anby court in the past.

Hence this step now proposed to be taken is nothing but to fill up the lacuna which is not acceptable in law.

The property might have devolved in the heirs for generations, but it is to be seen that if the property was partitioned among the legal heirs prior to your father's inheritance among his father or grandfather and his siblings, the porperty loses its ancestral character since the continuity chain to establish the ancestral nature is broken, therefore this property cannot be considered as ancestral property.

You may discuss with your advocate at length on such issues before jumping into any decision or conclusion.

2. If it was inherited from is father as his share then it may not be considered as ancestral property.

3. In fact if it was ancestral property then the daughters cannot claim any share in it as a right because as per the amendments in the year HSA, the daughters have equal rights as a coparcener but that will be effective from the date of such amendment and the father should have been alive on or after that date for the daughter to claim her share in the property as a right.

Therefore claim for rights in the property on the basis of ancestral property is not maintainable as per the latest amendment in the year 2005.

4. If the will was not challenged by the party opposing the it, then it is not mandatory to get the will probated by a court competent.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

The same issue has to be raised first before trial court. But now as you have reached HC. You can only file appeal in Supreme court for the Same. You can mention the fact in sc.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

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