H.U.F. property case entangled with deaths and will
Pls find my query attached with the complete case history.
My grand father bought a property.
Later he threw the entire property into the common hotch notch of huf.
HUF members were my grand father, grand mother, tauji, & papa.
Later my grand father decided to commence an oral partition and gave my tauji a peice of chunk from his land and separated him from huf.
Hence now there are 2 portions. One acquired by my tauji and other still under the ownership of HUF whose members are My grand father, grand mother and my father.
( All the above mentioned points are registerd in municipal records with affidavits, indemnity bond,etc)
Now in 1997 my father expired. ( I was 15 Yr old )
In 2003 my grand mother also expired.
And in Apr 2014 my grand father also expired.
Now in Nov 2014, we got to know that my grand father formed a will, on individual capacity and not as a member / copercener / karma of huf.
This will was completely in favour of my tauji's sons named pankaj n rishi.
Being the son of copercener, me and my family was kept aside in the will.
My bua also did not got any share in this will.
My Questions :
1. Did my grand father had the right to write a will?
2. If yes, Can he write the will for the property of whole huf or just his share in huf?
3. Nowhere in the will, Huf was mentioned, whereas the municipal records talks about huf only and above stated points.
4. Is the Huf dissolved automatically after the death of my gf, gm and father had.?
5. Is my bua not a shareholder in this property?
6. Finally, My tauji has asked us to vacate the house and told us that we are staying on license. ( Fact is My mother got married in this house, I was born in this house, my sister too, I got married here only, I got a daughter and a son who are also born in this house). Am I really staying on license.?
Pls suggest us the legal position and guide the way forward.
Asked in Property Law from Jaipur, Rajasthan
No need to vacate the house. Challenge the will .Your status for staying the house is not under the license . The property bought by your grand father is not come under the definition of Ancestral property .Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.
What is ancestral property
Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.
1. This property should be four generation old.
2. It should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property.
3. The right to a share in ancestral or coparcenary property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner.
4. The rights in ancestral property are determined per stripes and not per capita. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
5. Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties.
1) has probate been obtained of the will ? please clarify
2) a co-parcener can blend his self-acquired property with that of HUF by throwing his individual or self-acquired property into family hotchpot or by impressing such property with the character of HUF property.
3) once blending is done it is not revocable . there is no provision for retransfer said assets directly or indirectly into the transferor
4) your grand father could not have made will for the whole HUF property .
5) further grand father could not have bequeathed entire property to tauji sons
6) refuse to vacate the house . you are not a mere licence of the said house
This being a HUF property (if recorded as HUF with the corporation authorities) then your grandfather has limited role in it. If at all the alleged will was executed by him, he has right to bequeath only his share in the HUF property and not the entire property. You have a coparcenery right in the property automatically by birth besides a share in your father's share in the property. Your paternal aunt also has a right fora share in the property as a coparcener. Your mother has a right of share out of your father's share in the property as his legal heir. Your paternal uncle has no right to ask you to vacate the property, if he says that he has share in the property bequeathed through will, he has to produce the copy of the grant of probate of the will. I dont think he has applied for probate of will. He cannot threaten or intimidate you to vacate, if he is doing excess act, a complaint against him may be lodged with the police for his threats and illegal acts.
1. Your grandfather had no right to make the will of the entire property if it was HUF. He could make a will only yo the extent of his own share.
2. HUF stood dissolved on the demise of your grandfather.
3. Your aunt has a definitive share in the property which she can cull out by filing a case for division in the court.
4. Unless you cull out your share in the property it can be considered that you are staying on license.
5. You should file for division against your tau to cull out your share in the property.