• Minor son's right during family partition

Hello.
1. Property acquired by my great grand father was partitioned in 1969. All the children including his daughters have signed on the partition document which was duly registered.
2. The part that my grand father inherited (the ancestral house) was partitioned between him and his 5 sons in 1989. Two of his sons had children at that time (I was one of the 4 children who had been born till then) and the rest were unmarried. This partition is on paper and is neither registered nor notarized but has signatures of my grand father and all his sons. My grand father had two daughters but their signatures are not on this partition document. My grand father kept the ancestral house to himself and divided the land and shops he had inherited to all his sons. This division (including keeping the ancestral house to himself) is mentioned in this document.
3. The house that my grand father kept for himself through action 2. was transferred by him to my grand mother just before his death through a notorized deed.
4. My grand mother executed a will for bequeathing the same to one of her sons (not my father).
5. This son transferred the property to his younger brother (not my father).
Can I claim a portion to this ancestral house and / or the land on which it has been built?

Thanks a lot for your help.
Asked 11 months ago in Property Law from Bareilly, Uttar Pradesh
Religion: Hindu
1) once partition deed has executed property ceases to be ancestral property . 

2) your grand father would be absolute owner of his share . 

3) transfer of house by grand father should have been by registered deed 

4) mere notraisation is not sufficient . 

5) un registered gift deed would be inadmissible in evidence 

6) will by grand mother can be challenged by your father 

Ajay Sethi
Advocate, Mumbai
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A partition deed requires compulsory registration, failing which it is not a document of title. Since the deed is not registered the property continues to remain undivided. As a corollary thereto, the will is also illegal as your grandmother lacked the competence to make it. So any of the surviving children of your grandfather or his grandchildren can file a suit for partition to divide the property to cull out his share therein.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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My grand father kept the ancestral house to himself and divided the land and shops he had inherited to all his sons. This division (including keeping the ancestral house to himself) is mentioned in this document
This portion of property that was retained by your grandfather in the unregistered partition becomes your grandfather's own property since he duly partitioned the rest of properties to his children by executing partition deed accordingly and the same was properly acted upon by all the share holders.
Now this own property of your father, in the eyes of law shall be intestate property left behind by your grandfather upon his death because the transfer effected through a notarised document is invalid. 






3. The house that my grand father kept for himself through action 2. was transferred by him to my grand mother just before his death through a notorized deed.
The transfer of property effected vide a notarised document is invalid in the eyes of law, hence it can be considered as intestate property and eligible for partition among all the legal heirs of your grandfather.



4. My grand mother executed a will for bequeathing the same to one of her sons (not my father).
Your grandmother has no proper marketable title in the property hence bequest made through Will is null and void.




5. This son transferred the property to his younger brother (not my father).
The subsequent transfer by the son may also be considered as invalid owing to the title dispute.




Can I claim a portion to this ancestral house and / or the land on which it has been built?
You and your mother and other legal heirs of your deceased father can claim partition and separate possession of your share in the property but if your father is alive, only he can seek partition of his rightful and legitimate share in it. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1) will  need not be registered 

2) once will is executed  attested by 2 witnesses it would be valid 

3) further in UP probate of will is not mandatory 

4) grand mother could execute will if she so desired  in favour of one of her sons

5) you have no share in said house 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Your original statement in the Q-3 about this was that it was through a notarised deed and never you have mentioned about the notarised Will.
So you got the opinion about the notarised deed alone and had it been mentioned as Will, then the opinion could have been different.
Now since you confirm that your grandfather had transferred the property through a will (even it is an unregistered document), the bequest made thus is legally valid and your grandmother becomes an absolute owner by the operation of the Will. Therefore there is no question of ancestral nature continuing with reference to that particular property. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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The will is legally valid if it is in respect of the property which your grandfather got on division of property made among the heirs of his father. So the claim may survive in the court. 
Ashish Davessar
Advocate, Jaipur
18096 Answers
448 Consultations
5.0 on 5.0

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