• Father & son jointly acquired property declared in father's will

During 1979 to 2000, my father and me jointly lived and earned money. Till his retirement in 1992, I have handed over my salary,bonus,overtime, salary arrears and other emoluments etc., to my father during this period. 

After 1992(retirement), I have taken full financial and family responsibility till 2000 while he was a pensioner and he has not spent a sing pie on joint expenses. In addition, I've given on his demand financial assistance evry month.

We have jointly acquired four properties out of which Two houses & one plot in my Father's name and One plot is in my mother's name.

In 2001, a WILL was written and registered without my knowledge after he was separately living (2000 ONWARDS) in the other house. 

The will says- 
1. ALL THREE PROPERTIES ARE ACQUIRED OUT OF Father's EARNING RESOURCES. (eventhough jointly earned)
2. one house which I am presently residing assigns my name after his death.
3. other house is assigned in my sister's name after his death in which my parents and sister are residing together.
4. other plot. gold, cash and other movable properties are again assigned to my mother after his death. Mother has not got any Sthri Dhanam. She is favourable to my sister to assign these properties becasue my mother's brother (mama) married my sister.

In addition to this will, in past my grand father while their partition offered my father a house or equivalent cash.He accepted cash for which documentary evidence is there.

Equal rights legislation for son and daughter came during 2005-06 where as will was written in 2001.

Required clarifications:
1.The jointly acquired properties were declared in the will as Self-acquired by my father. The will saying contradictory CAN BE CONTESTED?
2.Is there any possibility of getting Injunction Order to stop the transfer the title of the properties as per the WILL in the name of sister & my mother.
  since, it is jointly earned properties.
3.Equal rights on the property for me and my sister holds at what status, since the WILL IS DATED PRIOR TO THE
  ACT.  i.e., 2001.
4.As per my knowledge, the WILL can have the scope of 1/3rd of his total assests. But the WILL covered all the assets. Is the WILL valid?
5.Actually I have one married son and one married daughter. My sister got one married daughter. My son, as a grandson, can he challenge the remaining jointly acquired property which was assigned to my sister and mother in the WILL? 
6.My father is 83 years old. He is earning about 60,000/- (pension, rents, bank intrests). What is my and my childern share on this?


WHILE CASE ENTRY INTO THE COURT: THE BASES. Which of the below options to be adopted basing on the above clariffications and information.
1.CONTRADICTING THE SELF EARNED PROPERTY AS SAID WILL AND PARTITION SUIT
2.PROVING MY EXTENT OF JOINTY EARNED PROPERTY INTERESTS AND FILING PARTITION SUIT.
3.INJUCTION ORDER APPLYING NOT TO EFFECT TRANSFER AS PER WILL CHALLENGING THE SELF EARNED STATUS OF MY FATHER.
  TILL JOINTLY EARNED INTERESTS ARE CLARIFIED IN COURT OF LAW OR OUT OF COURT SETTLEMENT.

Additional Information: My Sister and her family is dependant on me or my father till today. Till today no partition deed was done between my father and me. 
My father did not spend a single pie on me and my children and also not taken moral/financial responsibility till today.
Asked 8 months ago in Property Law from Hyderabad, Telangana
Religion: Hindu
1) Hindu can bequeath entire property by will 

2) your children cannot claim any share in property bequeathed by father by will 

3) yiu and your children have n share in father pension 

4) will takes  effect only on demise of father . It can be revoked at any time by father 

5) on your  father demise please note that will does not decide title to property 

6) you have to file declaratory suit that you are absolute owner of property that all consideration was paid by you for purchase of property 
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 Consultations
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1. Nobody can will a property which is not owned by him. Your father could have made a will only in respect of his own share in the joint properties. In the absence of a declaration by the civil court to the effect that your father is the absolute owner of the properties he could not have brought the entire property within the realm of his right to devise. So you can challenge the will in the civil court in as much as it infringes your rights in the property.

2. You can also seek injunction to restrain others from alienating or mutating the properties in their favour on the basis of will.

3. The date of will is immaterial as 2005 amendment relates to only ancestral property and not self acquired property.

4. Your son has no share in your property during your lifetime, so he cannot complain of breach of a right which did not accrue to him in the first place.

5. The movable and immovable assets of your father will devolve through succession on his heirs after his lifetime if he does not make a will. During his lifetime none of his heirs has any right to claim those.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Hi, 
You have valid grounds as you have contributed to purchase of two houses and two plots which are now currently registered in your parents name.
grounds for your claim: 
1) You, your wife, your children constitute a hindu undivided family along with your father and mother. Your father having retired in 1992 and has acquired properties post retirement through earnings from ancestral properties and income derived from you(income derived from skill and education without detriment to ancestral property)
2) that your father had effected a partition with his father and brothers and in the said partition received cash component. The said cash so received by your father is ancestral property in his hands and the said cash formed a nucleus to purchase above mentioned properties. 
3) in addition to the nucleus derived as above, you (son) has blended his self acquired earnings derived from his employment  for acquiring the said properties.
legal position;
4) based on points 3 and 4 father cannot exercise any testamentary powers such as will or gifts as these properties are not self acquired propertied or absolute properties of your father. Instead these are HUF properties (HUF comprising you, your wife, children, father and mother only). Sister excluded from HUF as she is married.
based on above grounds and legal position, you can file a suit for partition and demand injunction against your father and mother from dispossessing their properties through will, sale or gift or otherwise.
i am confident you have a strong points to support your claim and hence you will win the case.
hope this helps.
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
1. A person can bequeath his all self acquired properties to any person.

2. You cannot claim share in his pension because pension is non transferable property so it cannot be partitioned. 

3. You can file injunction suit for preventing other person from making any claim therein 
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0
1.The jointly acquired properties were declared in the will as Self-acquired by my father. The will saying contradictory CAN BE CONTESTED?

The jointly acquired properties shall have names of the all the purchasers in the registered sale deed document and not one individual name alone.  If the property was purchased on any single individual name alone, then that individual alone is the sole owner of the property.  The claim for joint ownership cannot be maintainable even if contested with documents for funding the purchase because the funder is eligible for a share in the property as a joint owner and registration to have been done accordingly, in your case this is missing.  




2.Is there any possibility of getting Injunction Order to stop the transfer the title of the properties as per the WILL in the name of sister & my mother.
  since, it is jointly earned properties.

Again, jointly earned properties is nothing but a misconception in the eyes of law.  Moreover the will shall come into force only after the demise of testator.  There can be mandy will written one by one nullifying the previous ones during the life time of the testator.
You have not stated that whether the will has come into force or not?





3.Equal rights on the property for me and my sister holds at what status, since the WILL IS DATED PRIOR TO THE
  ACT.  i.e., 2001.
As on date the will has not come into force.  The will shall come into force only after the lifetime of the testator. Moreover equal rights or any rights on the property shall be for the intestate properties only and not for the self acquired properties which has been disposed by testamentary disposition. 






4.As per my knowledge, the WILL can have the scope of 1/3rd of his total assests. But the WILL covered all the assets. Is the WILL valid?

The will is very much valid because the concept what you refer is for the muslims only, as per the Muslim personal law, a testator can bequeath only 1/3rd of his property.  Being a Hindu this law will not be applicable to your case. 






5.Actually I have one married son and one married daughter. My sister got one married daughter. My son, as a grandson, can he challenge the remaining jointly acquired property which was assigned to my sister and mother in the WILL? 

Any rights for your children in the properties shall be only after you, hence do not mis-read and misunderstand law and bend it to your convenience.  Your children can claim any share as a right from your properties alone that too after intestate death and not on your properties which have been disposed by a testamentary disposition. 






6.My father is 83 years old. He is earning about 60,000/- (pension, rents, bank intrests). What is my and my childern share on this?

NOTHING.  It is his own property, nobody can claim any right in it during his lifetime.


All your further questions shall find answers in the above lines. 

T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
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