I am the third male child in a family of four male children. My grand father had died in the year 1971 leaving behind his wife, one son and two married daughters. In my grandfathers last will he had specifically expressed that the properties in his name should go to his son and grandsons(male heirs of his son) only. My father died in the year 1986 leaving behind my mother and four sons. My grant fathers assets includes agricultural land of 7.16 acres of land. The family members consisting of my mother and brothers (including the legal heirs of my elder brother who died during 1988 leaving behind his wife, a daughter and a son had executed and registered a partition deed wherein the property was divided between my mother and my brothers(Total five claimants). Please confirm whether the partition deed is a valid one as 1/5 share of the property was alloted to my mother deviating from the clause in my grandfathers last will. My mother had executed and registered a will transferring her share to her three surviving sons, excluding the legal heirs of her late son who are not in good terms with her. Please confirm whether such will is tenable as per law. Now she says that she wants to transfer the whole of her share to one surviving son (last son with whom she is living). That being the case what recourse does the other surviving sons have in the matter in case the revised will is already registered. If not registered, how do we protect our rights on the shares previously transferred to us..
Dear Client,
Father share will devolve in wife and sons with equal share which he received through WILL. i.e. 1/5 each.
Rest part bequeathed on grand child is their personal share.
So mother can named/bequeath her share to any of her choice.
If need more elaboration than ask in short.
1) if by consent of beneficiary in the will partition deed has been executed it would be be binding on parties
2) mother can bequeath one fifth share transferred in her name by will to one son
3) registration of will is optional
4) will by mother can be revoked at any time during her lifetime
5)will takes effect on death of testator
1. On the death of your father his assets will be inherited by his legal heirs in equal share.
2. Since your father inherited the property as per the last Will of your grand father , the Will was complied with and any restriction on devolution on female heir would no more operate.
3. So on death of your father his legal heirs which include your mother have rightly divided the property by way of partition deed and hence there was no illegality in it.
4. Accordingly your mother during her lifetime can deal with her 1/5th share in her won whims including giving it to any one of you and none can stop her from ding so.
See the share which was give by your father devolved in son and grand son.
later on death of son your father his share will be further devolved in his wife and son as there was no will of your father so here the succession act applies.
So your mother is rightful owner of 1/5 th share of your fathers property others will enjoy share given by grandfather plus the fathers share. So according to hindu succession act a female hindu property is her own and she can trasfer it own her wish. So there is no deviation from will she has rightful claim over 1/5 share of fathers property not grandfather.
Grandfather's property:-
As per his last will, the properties in his name should go to his son and grandsons(male heirs of his son) only.
No. of son=1 and No. Of grandson=4. Therefore, total claimant = 1+4=5.
Therefore, the properties in your grandfather's name should be divided by 5. Each (one son and 4 grandsons) will get 1/5th share from the whole property.
If your father has died intestate leaving behind your mother and his four sons. Then the 1/5th share of your father will be divided into 5 parts (one part of share to mother, one part each to 4 sons).
If Elder brother (his share is = 1/5th of grandfather's property + 1/5th of father's share of grandfather's property) died intestate leaving behind his wife, a daughter and a son, then Elder brother's share will be divided by 4 (because, besides, wife, daughter and son, mother will get 1/4th of the property of Elder brother)
Your mother can make will for her part of shares only which she got from father's share and Elder brother's share of grandfather's property.
1/5th share could not have been transferred to your mother under the partition deed, for under your grandfather's will, only his grandsons were bequeathed with his properties.
Consequently, the will and the revised will executed by your mother are invalid and meaningless.
1. Was probate of the will of your grandatgher obtained? If no then the said will of your grandfather has no value more than a scrap,paper.
2. However, if probate has been obtained, then as per it the property can not be bequeathed by your father and then to his sons as your grandfather can not decide whom his son (to whom he is bequeathing his property including its title) will transfer his title. In that case your father will have the living right only and after his demise his sons will own the said property.
3. Alternatively, if it is considered that as per the will your father was bequeathed with your grandfather's property, then after his demise, intestate, all his legal heirs will equal share his said property and your grandfather's will in connection with your father's said property will not lie.
4. In the above context your mother can will her share of the property in your favour and her last will, whether registered or not, will be treated as final.
If it is ancestral Property and not self acquired then the share of women the mother will be there. If it's self acquired it will be strictly bas per will and can't deviate. If the partition was against the will it should have been challenged in court. If again her property if self acquired she can else she can't transfer it to specific son but has to distribute the same as all legal heirs have right in the same.
Now the dispute is about the division of your father's share in the property.
Since this property is divided into five equal parts allotting all the children and the mother one equal share.
Now your mother's share of property can be transferred by her to anyone of her choice, nobody can force her nor anyone can claim it as a right.
The registered will can be cancelled and a new will even if it is unregistered can be executed and is valid as per law.
