• Share in partition of property

My name is Thejaswini. Iam 32 Years old (Female) born on 25th of August 1982. I live in Bangalore.  I was married in the year 2005, February 18th.
About my Family:
Father who is aged about 65 years old who is a retired State Bank Employee
Younger brother aged about 25 years.
My Mother who passed away around 4.5 Years ago was a central Government Employee at the time of her death.
Case History:
1.	There is a property of my grandfather (Fathers Father) at Bangalore which was his self-earned property. He constructed four shops and a house. He had four children. 3 sons and a daughter. The second son is my father. He (My grandfather) had not made any kind of will at the time of his death. After the death of his wife (My grandmother) and elder son, the remaining two sons and the daughter divided the property. The daughter filed a suit against the two brothers and the case was decided in the family court. The daughter was given 22 lakhs cash and 1/3rd of her mother’s gold. A decree was issued in both the brothers’ name marking their portions in the property. Total site dimension of 40*45 has been divided equally. My father got his share of 20*45.

2.	 My mother passed away around 4.5 years on November 29th 2010. She was a central government official working as an accountant in Postal department at the time of her death.  The following properties are her self-earned properties: 
•	A house which is constructed on a site of 30/40 dimension in Bangalore.
•	A site of 30/40 dimension in Bangalore. 
•	Along with this, her movables like her death benefits, retairals, jewels, deposits, investments which are in the custody of my father.

3.	 My mother died because of Cancer. She had a tumor in her uterus which was cancerous and had metastated into secondary tumors, spreading into her brain. The doctors had concluded that no treatment could save her. She was not in conscious for a few days but on 10th of October 2010, she regained her conscious and declared an oral will in front of the family members namely her husband (my  father),  Son (my brother) Her mother (my Grandmother) and her sister (my aunt) in my absence. She pronounced that the property needs to be shared equally between her son and daughter i.e. between me and my brother in the ratio of 50:50. There is no will that was made for this oral declaration of hers. Later my aunt and grandmother informed me the same about my mother’s will.


My Questions:
1.	What is my share in the above said Ancestral Property? Can I claim my share through partition suite now, even when my father is still alive?
2.	What is my share in my mother’s said property?
3.	Can the witnesses be summoned by the court, for the oral will made by my mother? Will it stand as a witness in the court?
4.	Can I get share of 50% of the property in accordance of the oral will of my mother?
5.	In addition to this, since my mother was a Central Government Employee, her pension is been taken by my father post her death. My father also gets his pension as he was a State Bank 
Employee. Do I have a share in my mother’s pension? If so, what is my share?
Kindly request you to do the needful.

Regards,
Thejaswini.
Asked 1 year ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) it is not ancestral property . you have no share in your grand father property which was divided among his legal heirs on his demise . 

2) only if your father dies intestate would you have any share in the property that has devolved on your father 

3) as far as mother property is concerned there is no written will by your mother executed in presence of 2 attesting witnesses 

4) you will have 1/4th share in property . other legal heirs being your grand mother , your brother , your father . 

5) you wont get 50%share in property as per oral will . 

6) you have share in mother movable and immovable assets as mentioned above 
Ajay Sethi
Advocate, Mumbai
23120 Answers
1214 Consultations
5.0 on 5.0
Section 57 read with Schedule III makes Sections 63 of the Indian Succession Act applicable to all Hindus. Section 63 of the Act relates to execution of unprivileged Wills and reads as under:

Execution of unprivileged wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall executed his will according to the following rules:

(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and such of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

12. In view of Section 57 read with Schedule III of the Act, requirements of Section 63 must be complied with and are mandatory for a Will executed by a Hindu. A Will which does not comply with the requirement of Section 63 of the Act is null and void. Clause (a) to Section 63 requires a Will should be in writing because it is to be signed or marked by the testator himself or signed by some other person in the presence of the Testator or on his direction. A Will, as per Section 63, is also required to be attested by two or more witnesses. Thus Section 63 of the Act requires a Will to be in writing.
Ajay Sethi
Advocate, Mumbai
23120 Answers
1214 Consultations
5.0 on 5.0
Hi,
 1. yes you can claim your hare in mothers property through a partition , either with the consent of family they do not agree then by filing a partition suit in the civil court of the area where the properties l.
2. The oral Will is also valid if the witnesses are there to depose in the court you can't probate it as the wordings were not recorded by the witnesses who anybody else entrusted .However you can  present  your witnesses in th e court to depose  in your favour that your mother wished it that way.
3. The legal heirs of your mother will get equal right in the property.
4. Your mother's legal heirs are , her husband, her mother( if alive )and her sons and daughters that is you an your brother.
5.  If a petition take place through court there iwll be four legal heirs.
6. Yes the grand mother and Aunt  can be summoned as witness in the court
7. The pension has to be also equally dividable between the  heirs as well as all other benefits like, bank deposits, LIC etc. 
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. The property of your grand father and your mother are not ancestral properties. Since your grand father died without making a will all his children had an equal share in all his properties. It surprises em that your father did not claim his share in the properties when the daughter filed the case. Whether or not your father can now claim his share in the properties which has been denied to you will depend on the date of the court order and the current status of the properties. However, you have no share in the properties of your grand father.

2. In so far as the properties of your mother are concerned, in view of the fact that she passed away before she could document and vouchsafe her oral declaration, her husband and children have an equal share in all her properties. So the oral declaration has no legal value. You are free to file for division to get your share.

3. Your father along with you and your brother have an equal share in your mother's pension also. 
Ashish Davessar
Advocate, Jaipur
18058 Answers
445 Consultations
5.0 on 5.0
1.  You will not be entitled to claim the property which is in your father's name right now.  However, if your father executes a WILL and names you as one of the beneficiaries, then you will get the share of the property as per the contents of the WILL after your father's death.  If, however, your father dies intestate(without writing a WILL), then you and your brother will get equal share in your father's property. Also, note that your grand father's property is not ancestral property to you. Ancestral property means which remains as such from great grand father to great grand children.
2.  In your mother's immovable property, you will get 1/3rd share alongwith your brother and father.  Your mother's oral WILL is legally not valid. 2 witnesses attesting a written WILL is only valid.
3.  Court will not consider the oral WILL.
4.  You will get 1/3rd share of the property, as your mother has died intestate.
5.  You are not entitled to have any share in your mother's pension.
Shashidhar S. Sastry
Advocate, Bangalore
1232 Answers
59 Consultations
5.0 on 5.0
You have no right over your grand father’s property 20*45 and your mother’s property have right included both movables and immovables.

1.	In ancestral property as per the will your father alone has absolute ownership. You got the share only after your father’s death. If you need partition you got 1/3 share. Better to file partition only after father’s death.

2.	In your mother property divided among equally in between your father, brother and you. You got 1/3.After your fathers death you got ½ share .

3.	If you file a case for partition as per oral will the presence of witness is important for getting a decree .So you have to take steps ,if so  surely the court summoned the witnesses. If you succeeded to prove oral will then you can got 50 % share in mothers property.In all the asset of your mother both movable and immovable’s ;you have 1/3 share. So you have right in pension amount accordingly .
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
If there is any dispute between your father, settle the things amicably.He has every right to alienate his fathers property to any person. He has every right to claim the medical expenses of your mother.He is the nominee of your mother's pension,so he got the same.After his death you can't claim for getting the same pension awarded to your mother. Money is  not a big thing in life, All the person has right to make money ,use the money in right way. 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. The legal meaning of ancestral roerty is different. it is your paternal roperty which you can not claim during the life time of your father unless he gifts it to you,

2. Since you and your bother is the only legal heirs of your mother's poperty, you have equal share on it even if there were no oral will expressed by her,

3. Not necessary since even without the will you can caim 50% share of her roperty being one of her two legal heirs,

4. Yes, as explained above,

5. Your father probably was the nominee of her pension. You have a cliam of 50% on it.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. Your aunt i.e your father's sister went to court to get her share, wherein an out of court settlement was reached at. 

2. Nobody is disputing that the property is not the self earned of your father. However, the property is the self earned of your grand father, which implies that while your father is still alive you have no share in the property of your grand father. 

3. The property of your grand father which was divided equally between your father and his brother after your sister agreed to give away her share in the property in lieu of 12 lakhs each from both her surviving brother, is now owned only by your father and his surviving brother. You have no share therein. 
Ashish Davessar
Advocate, Jaipur
18058 Answers
445 Consultations
5.0 on 5.0
1) admittedly it is your grand father self acquired property . 

2) on his demise property was inherited by your father and uncle and sister given share by making payment of Rs `12 lakhs 

3) it does not become ancestral property merely because your father inherited it from your grand father 

4)Ancestral Property is a property that has remained unpartitioned in the family for 4 generations. In simple words if a person holds a property which from his great grand father came in his hand down the line will be considered an ancestral property
Ajay Sethi
Advocate, Mumbai
23120 Answers
1214 Consultations
5.0 on 5.0
1. Your understanding about ancestral property is different from what has been legally difined as ancestral property,

2. To call a property ancestral,its title should flow for 4 generations uninterupted i.e. from great grandfather to great grandchild. It means that the title of the property snading in the name of your great grandfather should not be conveyed to any of his heirs in any way like settlement/sale/gift/partition deed and it shoud still stand in his name. Your case is not so as the property belonged to your grandfather and not great grandfather and also as there has already been a partition of the property. So, yours is not an ancestral property, 

3. Based on the above argument, you are not entitled to claim any share of your father's partitioned property during his life time.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
What is ancestral property ?
Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.

What is not ancestral property ?
Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. The property owned by your father is not an ancestral property.
2.  Only your father has got 100% share & right in the property.
3.  Even though the property is not earned by your father, since your grand father died intestate he has got the property along with his siblings and now it is the self-acquired property of your father.
4.   If, however, your father dies intestate(without writing a WILL), then you and your brother will get equal share in your father's property.
5.  Also, note that your grand father's property is not ancestral property to you. Ancestral property means which remains as such without any division from great grand father to great grand children.
6. However, if your father executes a WILL and names you as one of the beneficiaries, then you will get the share of the property as per the contents of the WILL after your father's death.
Shashidhar S. Sastry
Advocate, Bangalore
1232 Answers
59 Consultations
5.0 on 5.0

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