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Vasanth K R (business)     05 April 2012

Ancestral property

A, B & C were brothers belonged to hindu undivided family, they had three immovable ancestral properties at various locations, and they had joint business firm.  In 1954 due to differences they came to a conclusion for a final settlement with regard to the immovable properties. On going through the accounts they found that the share of assets of B & C was equal to the share of liabilities in joint family business firm. So, B & C found that it is not possible for them to continue as co-sharers of immovable properties. So, they executed a release deed  in favour of A ( A had four minor male issues namely W, X, Y, Z, at that time) and gave up all rights and interests in entire immovable properties for which each of them received Rs.4ooo/- as consideration from A.  After few years  out of these three properties A sold two properties for Rs.16,500/-  for the purpose of clearing ancestral family debts, for investment in joint family business firm,etc, A 's one son W had become major at that time. In 1995 A made a registered will on remaining single property in favour of his three sons W, X, Y,only. Now dispute is between left over (from will) son Z and  W,X,Y about the charectristic of the property. W,X,Y are contending that since there father A had paid consideration of Rs.4,000/- to B amd C the remaining single property is self acquired property of there father and property should be shared by  themselves as per will. Where as Z is contending that the property is ancestral and his father cannot will it, so even he has rights over the property. Z is my father in-law. My question is- by paying consideration to B and C did the entire ancestral properties really became self acquired properties of A? With regard to male issues of A what is the charecteristic of the property? please clarify.



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 1 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     05 April 2012

Dear Querist,

 

In my view - just because consideration moved from A to B & C to relinquish their shares - the property would not become the seperate property of A. The property was and remains to be joint family property, which A shares equally with his 4 issues to the tune of 1/5th each. Now when he sells 2 of the properties - he does so in the capacity of the karta - if there was no legal necessity or benefit of estate - the alienation could have been impeached by the other coparcenors. Since 3 out of 4 coparcenors were minors - they could have challenged it within 3 years of their attaining majority. However that is out of question now - since it seems to be palpably barred by limitation now. Now as regards the latest transaction - the father A could not have willed more than 1/5th, and his will takes affect only to the tune of his 1/5th. XYZ would hold the property after his death 1/5th + 1/3rd of 1/5th each. and Z who has been excluded holds only 1/5th. Hence in the ultimate analysis after A's death - W,X,Y would hold - 4/15th each and Z would hold 3/15th. 

 

Hope you are satisfied with this

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