• Ancestral property - collateral in bank, fake will & oral

Hello,

My mother had only two female daughters, so my father went ahead for second marriage and had 4 sons during 1970. My father inherited huge ancestral properties in 1970, maintained them successfully and revenue from them were converted in buying new properties for “Sons” from second marriage. In other words, my father didn’t earn anything by his own or went for government/private job. As my brothers denied my rightful share in ancestral property, I filed partition suit in Madurai court on 2011. The case is about to come for hearing for argument.

As my brothers pressured, my father registered a will in 2013 by a fake claim “oral partition was done before 2005 & based on that 2013 was registered.” That will allotted 5% of ownership when compared to my brothers. But I have crystal clear proof for my father’s ancestral property document and newly acquired properties too. Also, my brothers sold 7 ancestral properties after 2005 and pledged my ancestral properties as collateral for bank loan to expand/start business (concealing the daughters details). They are also converting my ancestral property benefits (business) into their wives name. In 2014, my father & mother passed away. 

1.	Using RTI act, I sent notice to SBI bank to get the details for ancestral property collateral details. But they denied sharing details as my brothers are big customers & case was filed in court. How to get the details from the bank? 

2.	Does an oral partition valid in court?  

3.	When a case is failed in 2011, any will registered on 2013 is valid or not? 

Please share your valuable comments. 
 
Best regards
Punithavathy
Asked 2 months ago in Civil Law from Madurai, Tamil Nadu
Kindly clarify on evtat basis you say it is ancestral property 

2) property which has remained undivided for four generations woukd be ancestral properties 

3) if partition had taken place before 2005 daughters would not have share in ancestral properties 

4) father can execute will for his share of properties after filing of suit 



5) well settled that oral partition of property is a permissible mode of partition which can be adopted by any undivided Hindu family as has been held in Karpagathachi's case (supra) and S. Sai Reddy v. S. Narayana Reddy, (1991)13 S.C.C. .647
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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Hi 

1) In the state of Tamil nadu, Hindu succession act was amended in the year 1989. 

2) The amendment brought out with effect from 25-3-1989 has removed the distinction as regards to a son or a daughter. So technically with effect from 25-3-1989, all living and new born daughter's were eligible to succeed to ancestral property

3) So in your case, the Alleged will made in the year 2005 has no material value at all as your father cannot make any Will of any ancestral property and more so when your right to succeed to ancestral property was established vide tamil nadu hindu succession act amendment.

4) Oral partition is valid for movable properties. However when there is claim for partition of immovable properties, the same should be registered . If there is no registration of partition deed when partition involves immovable properties, then the Oral partition is not Valid. In your case since registration of partition instrument did not happen in the year 2005 and not sure whether there has been any registration of any partition deed and hence oral partition is invalid. 

5) Moreover since you had filed the case in the year 2011, the WILL made by your father in  the year 2013 is open for challenge under the grounds of Coercion and Undue influence and hence will not be  a valid Will. 

6) You can get the details of properties mortgaged to the bank as collateral from your sub-registrar office. Since banks provide loans only after registration of mortgage, you can obtain the details of mortgages made by your brother's from the nearest sub-registrar office where properties are located. 


7) In your case, since all of the properties are ancestral properties, you will win your case on the following grounds
a) Oral Partition - NOT VALID since it involves immovable properties. 
b) WILL - Can be made only for self acquired properties and not ancestral properties. More so Any WILL made under coercion and undue influence is Totally INVALID.
c) Your right to succeed to properties is vide Tamil Nadu Hindu Succession amendment act 1989 (not 2005).
d) Partition Deed involving immovable properties should be COMPULSORILY Registered. 

Hope this helps. 
All the best.



  

Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
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1. Ancestral property can also be willed by someone having a definitive share therein but his right to make a bequest is limited to his own share. If you have concrete evidence of the property being ancestral, as you have said, a suit for partition is the remedy. 

2. The pledge of ancestral properties by your brother can be challenged through a suit for cancellation of the deeds executed by them and for declaration of your title to the property.

3. The information that you have sought is third part information, the disclosure of which is exempted by the RTI Act. You need directions from the court to the bank to disclose the details of the property.

4. An oral partition, if reduced to memorandum, is valid.

Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) if ancestral properties sold for purchase of property in brother name you have share in said properties 

2) similarly you have share in sale proceeds of ancestral properties 

3) if it had been used for running business you have share in said business income 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
Hi, 
1) Since some of the ancestral properties were sold and part of sale proceeds were used to purchase properties in  name of your brother and wife, the properties so purchased in the name of your brother and his wife will automatically acquire the character of ancestral properties as the Seed/source of funding for purchase of these properties were by sale of ancestral properties. 
2) If the business has been funded through sale of ancestral properties or by mortgaging ancestral properties as collateral to the banks, you have every right to claim a share in the equity capital of the business and its income.
3) in your case the Oral Partition is not valid for the reasons stated earlier. No worries
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
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1. A challenge has to be mounted in the civil court by you to the will of your father. 
2. You may either file a suit for cancellation of the sale deeds of ancestral properties sold by your father or seek declaration of title in the properties purchased from the sale proceeds of the ancestral properties.
3. Consult a lawyer personally to get a clear opinion.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1.	Using RTI act, I sent notice to SBI bank to get the details for ancestral property collateral details. But they denied sharing details as my brothers are big customers & case was filed in court. How to get the details from the bank? 

The bank can deny furnishing the details of its customer since it may violate the privacy policy maintained with the customer. They are right in refusing to furnish the information sought through RTI act.






2.	Does an oral partition valid in court?  

If it is proved that oral partition  has taken place, it is very much valid.






3.	When a case is failed in 2011, any will registered on 2013 is valid or not? 

Registering a Will has nothing to do with any pending case in that regard.

T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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For all your subsequent questions the answer is that you have to establish that these were ancestral properties and you are entitled to a share out of your father's share in the property as a coparcener.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0

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