• Father wrote will on partitioned agricultural land

My father passed away and left a WILL for me on agricultural land in Hassan Karnataka. This property from was obtained from partition( done at taluk office, that time registration was not mandatory) among his brothers in 1983. Me and my sisters born before the partition. 
Now, one of my sister filed a case for equal share. And she claims it is an ancestral property and she has equal rights. Does she get a share on this property? Is this property considered ancestral?
Can I get recent judgments reference for this kind of a cases?
Asked 2 months ago in Property Law
Religion: Hindu

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18 Answers

Property which has remained undivided for four generations is ancestral property 

 

2) since partition has taken place it is not ancestral property 

 

3) sister does not have equal share 

 

4) apply for probate of father will 

 

5) enclose affidavit of one of attesting witnesses 

 

6) probate is judicial proof that will is genuine 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

- Since, your father has got that property by way of partition , then after getting the same it will considered his self acquired property , and he was having to write a WILL in your favour without the interference from your sister

- Further, if  you having proof of that partition deed from the taluk office even, then you can produce the same before the court for proving that this was self acquired property of your father , and not ancestral .

- Further, as this was not an ancestral property and father write a WILL in your favour , then sister having no share in the property 

- You can file a probate petition before the court. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

Any property which has remained undivided in the last four generations is considered ancestral for legal purposes. So, this property would not be treated as ancestral as it was partitioned.

 

Siddharth Jain
Advocate, New Delhi
5759 Answers
83 Consultations

5.0 on 5.0

Dear sir,

Your sister doesn't have the share as the property has been bequeathed to you by virtue of will and as the property was your's father's self-owned property he has the full right to bequeath the property to anybody he wishes. 

Thank You

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

If the property that was inherited by your father was by a partition deed, then the property even if it was considered as an ancestral property lost its nature upon partition long ago.

Thus it becomes your father's own and absolute property.

Therefore you have full rights to acquire the property which was bequeathed in your favor by your father  after his lifetime be enforcing the Will.

You can apply for probate of Will and get the property revenue records transferred to your name.

If she has filed the case seeking a claim as a right, you can challenge the same properly during trial proceedings.

You will find lot of citations to this effect, you can ask your lawyer to search for one.  

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Is it self acquired property of grand father ?

 

on his demise partition has been done between father and his siblings 

 

you and your siblings had no share in the property during father lifetime 

 

father could have bequeathed property to you by will 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

Dear Sir

As per Hindu personal laws, only undivided land that belonged to your great grandfather would qualify as ancestral property.

Since the property has been partitioned, it cannot be said to be ancestral and so your sister has no right over it.

Thank you

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

Grandfather's property is not considered as ancestral property to the grandchildren.

Ancestral property means any undivided property which has been present through four generations.

Such property should belong to the great grandfather and pass on to your grandfather.

Maintaining the hierarchy, it will pass to your father, then to you in an undivided form.

Therefore do not be misguided listening to rumors or incorrect information.

Your father can very well bequeath his undivided share in the property that he is entitled out of his father's proeprty by a Will to the beneficiary of his choice, there is no legal impediment in it. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

- As i mentioned above after getting the share it will considered as self acquired property . 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

This property will be considered self acquired only. It's not an ancestral property.

Siddharth Jain
Advocate, New Delhi
5759 Answers
83 Consultations

5.0 on 5.0

Hi,  your Sister has right over the property. The property become ancestral property and your father has no right to write Will. 

Pradeep Bharathipura
Advocate, Bangalore
5135 Answers
282 Consultations

4.5 on 5.0

Judgments depend upon facts of each case 

 

2) if property was purchased by father and his brothers in grandfather name by no stretch of imagination it would be ancestral property 

 

3) I presume you would be able to prove funds were transferred by father and his brothers for purchase of property 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

It is not ancestral property. 

It becomes your father's own and absolute property. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Dear Sir,

With respect to your question on ancestral property, 

1. A question arises that ‘who can acquire ancestral property?’ this was answered within the case of Arshnoor Singh v. Harpal Kaur, 2019, it was held by the Hon’ble Supreme Court that under the Mitakshara Law, whenever a male ancestor acquires any land from any of his father’s ancestors up to a few degrees above him, then his legal heirs about three degrees below him, receives equal rights as coparceners therein property. 

Now, women and men have equal rights over their ancestral property. There are some incidents of the ancestral property mentioned below: 

  • The ancestral property must belong to four generations or we can say that ancestral property must be continued for four generations and passed down from generation to generation.
  • The ancestral property should not be divided by the members and when the division occurs, the property becomes the acquired property.
  • In the case of ancestral property, a person has the rights or interests within the ownership from birth. 
  • The ancestral property rights are controlled by per strips and not by each capita. The shares within the ancestral property are first determined for each and every generation and divided for the next generation.
  • Moreover, properties acquired from mother, grandmother, uncle, or even brother are not the ancestor properties. And property inherited by will and gift also is not ancestral property. Ancestor property can become ancestor property whereas if is thrown into the pool of ancestor one and enjoyed in common.  
  • Any property gifted by a father to his son cannot become an ancestor within the hands of the son thanks to the straightforward reason of the fact he got it from his father.
  • According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried are considered as a member of her father’s HUF (Hindu Undivided Family) and even be appointed as ‘Karta’.
  • Clarifying later, within the year 2005, the Supreme Court passed an amendment of the Hindu Succession Act of 1956. Now, the amendment granted daughters the correct to inherit ancestral property together with their male relatives.

Thank you 

God Bless

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

It's not ancestral. You can verify the same from a local lawyer too.

Siddharth Jain
Advocate, New Delhi
5759 Answers
83 Consultations

5.0 on 5.0

- As per my view , it come under self acquired property , as i mentioned above. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

Dear Sir,

First know the definition of ancestral property which is as follows. The above property does not fall within the following definition.

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What does the grandparent's property law in India state? Does the grandson own the right to the property?

All property's owned by a Hindu person devolves onto his class one legal heir's. 

Now to the specific scenario's in ur example (for sake of convenience I'm presuming ur ur grandfather has only one legal heir)

Senario1: The property is self acquired by your Grandfather, in such case upon his demise interstate (without a will) the property would devolve upon ur Father and not you. In case your farther passes away before your grandfather then it such case it would be devolve upon you, your mother and ur siblings equally.

Scenario 2: the property in question is self acquired by ur grandfather father ( ur great grand farther) - would devolve same as scenario 1.

Scenario 3: the property in question is self acquired by ur grandfather grand father ( ur great great grand farther) - would devolve same as scenario 1.

Scenario 4: the property in question is self acquired by ur grandfathers great grand father ( ur great great great grand farther) - then in such a case you would be entitled to the property by birth as it becomes ur ancestral property.

To give you more clarity on the concept of Ancestral Property's : any property which passes undivided down 4 generations of male lineage is called ancestral property. The right to such property acures at birth unlike other laws of inheritance where right arises upon the death of the the owner.

Hope this brings some clarity to your question and your sense of entitlements.

Meaning of ancestral property  in India-An ancestral property means a propertywhich is devolved upon heirs by the 3 generations above them; fatherfather's fatheror father's fathersfather. ... That means when a coparcener acquires his share inancestral property than he can make a will to that share and bequest it.

Meaning of ancestral property in India-An ancestral property means a property which is devolved upon heirs by the 3 generations above them; father, father’s father or father’s fathers’ father. It passes to the next three generations.

Meaning of will-A will means a document in which a person specifies the method to be applied in management and distribution of properties after his death.

The basic principle involved is that the property should be four generations old. The right to use and acquire property is accrued by persons through birth itself. The division of property is per stripes i.e. that share of one generation is calculated first than the share of successive generations is subdivided according to share of their predecessor. These basic elements are for governing majorly the Hindus.

If A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’sfather, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases . A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons but as regards other relations he holds it and is entitled to hold it, as his absolute property.”[1]

Now answer to the question is that that will to ancestral property is not entirelyillegal. That means when a coparcener acquires his share in ancestral property than he can make a will to that share and bequest it. However will shall be executed after the death of the testator and if the coparcener before acquiring a share makes a will than that will be illegal. Share in ancestral property will be inherited by coparceners. So he can make a will to his share in ancestral property.As whatever he acquires is his share now and he can dispose his assets according to his wishes.

Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th January, 2016 Hon’ble Mr. J. Valmiki Mehta of Delhi High Court ruled-

If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e. a property belonging to his paternal ancestor.

Kishan Dutt Kalaskar
Advocate, Bangalore
5948 Answers
317 Consultations

4.8 on 5.0

If the same is self acquired property then she will not have any claim on it. But if its ancestral she can claim as will is illegal for ancestral property

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

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