Property 1) There was ancestral property of 6 acres in TAMILNADU. in 1988 my grandfather and his brother executed Partition deed in that the male lineage like my father and me were added as parties .My grandfather's daughters were not added as part of it and revenue records also updated as per partition deed(only my grandfather name,my father name and my name) my grand father got 3 acers and all male lineage were included. so the patta was in my grandfather, my father and my name . So the shares were divided as below as per partition deed. a) my grandfather - 1 acres b) My father - 1 acers c) in my name - 1 acers In 2000, my grandfather died and my father and me are enjoying my grandfather share as well past 20 years.My grandfather's daughters were given enough gold and money at that time of their marriage before 1970. and grandfather's daughters also died in 2007 .Now their legal heris (my grandfather's class 2 legal heirs) are not coming for settlement and they are also not ready to accept money . and they said they will not come to court as well. property 2) And also My grandfather bought another land of 1.7 acres from his own money and the patta is in my grandfathers Name .but we are enjoying this property since 2000. so My Questions is , 1) My grandfather executed unregistered will for both the property to my father.but we have only xerox copy and missed the original . is it valid to will the ancestral property after partition to only my father ? his self acquired can be given to my father via will .But what if the property is ancestral and acquired via partition deed ? 2) we don't want to give any share to my grandfather;s class 2 legal heirs(via daughter).please advise if there are any option in law to transfer the property to my father name with any will. 3) the property 2 has some legal issue and my father spend lot of money to lawyers. can this money recovered from class 2 legal heirs if they claim theirs shares. ? 4) can my father claim the class 2 legal heirs share's as well based on enjoyment of property ? Thanks Ramesh
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Grand father can execute will for partition property in favour of your father
2) once partition has been done it ceases to be ancestral property
3) on basis of will apply for mutation of property in favour of father
4) you cannot recover legal fees from class 2 legal heirs
5) mere possession does not make your father absolute owner of property
Hello,
They are entitled to get share of their property but if they avoid court proceedings the court will decide the matter ex-parte.
Regards
Only self acquired property can be given by will along with with hos share in ancestral. Daughters will also have share in ancestral. That money can only be recovered by mutual consent or if agreed before spending. Otherwise suit for recovery needs to be filed.
1. In the described circumstances, the property is NOT "ancestral" in any manner whatsoever. Property must be documentarily atleast 4 generations old to be classified as Ancestral Property.
2. Partitioned property is classified as "self-acquired" property and no other excluded legal heirs have any legal right /stake in such partitioned property and/or non-ancestral property.
3. Money /Gold /whatever.... spent on marriage etc.... on Son /Daughter /whosoever.... is not considered by Court, during claim /settlement /order of such properties. Legal costs CANNOT be recovered by opposite parties, who have a right to file or defend their legitimate rights.
4. Either settle amicably (using elders or intermediary persons) or file Civil Suit for Declaration of Title-Ownership of property and directions to Revenue /Municipal authorities to Mutate /Transfer property in the legal beneficiary names.
If the property belonged to your grandfather he may will it to anybody. But in this case it was an ancestral property. But it was partitioned before 2005 therefore his daughters and heir heirs do not have any share in the property.
As far as property 2 is concerned....it was a self acquired property of your grandfather. After his death his property goes to his heirs ie his sons and daughters. Here the daughters have a share.
1. The so called ancestral property also becomes his own and absolute property of your grandfather after it was duly partitioned.
It loses its character of ancestral nature once the proeprty has been partitioned and everyone have got their respective share in it.
Therefore there is no illegality in your grandfather bequeathing his share of proeprty to your father by executing a Will in your father's favor.
2. In fact since your grandfather has already made a Will to transfer his properties after his lifetime, nobody other than the beneficiaries are entitled to any share in the property so bequeathed.
Therefore the claim made by them i.e., your paternal aunt's legal heirs are not maintainable.
3. No, the amount spent by your father is his own decision, the opposite parties cannot be made liable to reimburse the same.
4. Your father is the beneficiary of the Will, so he do not have to consider the claim made by them, he can acquire the property on the basis of Will itself.
1. once the ancestral property is partitioned, it loses its character of being an ancestral property. The share upon partition which went to your GF then becomes his self acquired property and he can make a Will in respect of such property
2. when your grandfather died, his class 1 legal heirs i.e. his son was alive. So if a class 1 legal heir is alive, the class 2 legal heirs cannot claim
3. if your father intends to transfer both the properties as bequeathed to him by your GF by his Will and since the Will original is lost, your father needs to file a civil suit for proving that Will
4. if your father fails to prove the Will by filing a civil suit, then the properties will devolve on the class 1 legal heirs which include the children of predeceased daughters as well
5. your father needs to make an election. Whether he wants to claim on the properties on basis of adverse possession or on basis of the bequest made in his favour under the Will. However there would be judgments which have held that a party can make alternative pleas to claim on the property
Dear Sir,
After partition, your grandfather became illegible for will of the ancestral property of his share as well as all the self acquired property. You are suggested to get the mutation done in the name of your father by use of death certificate and legal heir/succession certificate.
Hi
1. Every property can be given via will but thta should be a Registered one.
2. Get a sucession Certificate in favour of your father by stating in court that he is the only legal heir of the property. Then get the property transferred on basis of that certificate.
3. No.
Thanks
1. Yes the grand father can give property by will for same the will is valid though original will is not available file for probate of the will.
2. See as per your facts will is there so based on that probate of the will can be obtained. Further in case will is not there then they will have share in Grand father's property.
3. See you can claim that money though after passing all these years recovery of same may not be possible through court still.complete facts and circumstances and evidence on record has to be seen.
4. No based on possession he cannot claim there share.
Grand fathers daughter's children are not class II heirs but class one.
Xerox of will, to your dismay, not reliable. if Will is consider valid self acquired property of GF ones by father and ancestral property was partitioned before 2005 and also testamentary succession opened in 2000 on grand father's death. His daughter heirs have no claim.
You have to prove Will, in case of dispute. No money can be recovered from legal heirs and on the basis of long enjoyment of property , no claim arise except by adverse possession.
1. It is possible but you need original will to get patta transferred on name of your father. The ancestral property acquired through partition deed become self acquired property of owner.
2. No their is no other way then to partition the property of your grandfather among all legal heirs equally if you don't have will of your grandfather.
3. Yes your father can ask them to share the legal fees which is spend by him on the dispute of property 2 but they can deny the payment of share spend by your father.
4. No your father cannot claim share of other legal heirs of ground of enjoyment of property.
Once an ancestral property is partitioned between the family members, it would cease to be ancestral property. A father has a choice to not will-out his self-acquired property to his son. However, this is not valid in case of ancestral properties
you can apply for mutation of property in your father name on basis of will .
you cannot recover money.
1. As your grandfather had acquired his share through a partition with his brother, it became his exclusive asset, which he could bequeath by Will to anyone of his choice. If you are unable to trace the original Will, file a police complaint and publish the matter (of the missing Will) in local newspapers. Then, move the district court for a probate in your father's name on the basis of the Will (of which you hold a copy).
2. See the answer to Q.1.
3. Pray for a court order where the litigation is under way.
4. Based on the Will alone your father can establish his exclusive right.
is there any time limit to probate the will in district court ? my grandfather wrote this will around 20 years back and we don't have any valid reason for not probating the will since 20 years
Apply for probate of will at the earliest
2) probate is judicial proof that will is genuine
3) explains the delay in applying for probate
4) if there was no dispute between legal heirs it is not necessary that probate should be applied within 3 years only
No but probate is necessary when Will is objected.
It's actually 3 years from knowledge of the will but you can seek probate by condoning the delay.
A will is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it.
The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’.
A Will document remains valid for all time with absolutely no time bar for its provisions to come into effect.
A Will can be challenged within 12 years from the date of the death of the person.
You can file a probate petition even now but with satisfactory reasons for the inordinate delay seeking grant of probate.
See as such there is no time limit as per court judgement it's continuing cause of action so it can be filed.
Dear Sir,
It should have been probated soon after death of grand father. If you wish to do it, file with an application for condonation of delay.
No there is no time period prescribed in law. A will is the last wish and cannot be brushed aside. The property has to be partitioned/given as his last wishes.
1. There is no legal restriction on filing Probate application for WILL, even after 20 years. No reasons required to be declared for such delay.
2. However, in the event, if a family dispute arises, THEN you would have to prove the genuineness of the WILL, by appropriate witnesses (who may or may not be available) alongwith other evidences.
There is no time limit to probate the will rathe it should be a valid one
No, there is no time limit or any limitation for getting the Will probate.
1. It is not clear firstly on what basis you call the property ancestral.
2. Be that as it may, if your grandfather executed a will then properties have devolved in terms of the will/
3. One is free to bequeath the share that he receives on partition of an ancestral property.
4. Unless it is shown by the daughters that property was ancestral in their hands on the date on which either partition took place or subsequently when your grandfather made the will, they cannot impeach the partition or will.
5. A property that is ancestral in the hands of father, may not necessarily be ancestral in the hands of children.
1. The limitation period to file probate petition is 3 years from the date of knowledge of will having been made.
2. Litigation expenses already spent cannot be recovered from any heirs.
there is no time limit as such
but the delay has to be explained
delay raises suspicion in the mind of the Court
1. As per law, when the division/partition happens, it becomes the self-acquired property and not ancestral property.
- The so called ancestral property also becomes his own and absolute property of your grandfather after it was duly partitioned.
- Hence he was free to execute a WILL in favour of your father , and none has right to challenge the same .
2. Since there is a WILL in favour of your father, hence for giving a legal colour to that WILL , your father should file a probate petition before the court.
- After getting the Probate decree, you can apply for mutation of the said property in the name of your father legally.
- There is no period of limitation for filing a probate petition.
3. It can be amicably settled between the parties, Legally cannot recover the same.
4. They have no right to claim over the property duly transferred in your fathers name after executing WILL.
In your application for probate state all the facts clearly including the ongoing suits, if any, involving the property and pray for condoning the delay.