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Ashish (owner)     13 July 2012

Is registered will of ancestral property valid ?

My Great Grand Father expired in 1987 he had 2 houses (self Acquired) but he did not made any will .

After that my Grandfather and his two brother divided that property among them equally . 

My Grandfather also passed away in 2007 but he made a registered will in which he has divided property unequally among his 5 sons (including my father). 

My grandfather has no self acquired property , he was having property only which he got share from his father.

Till date we have not seen that registered will because that will is with my father's eldest brother or say my grandfather's eldest son. 

My father also passed away in 2009 , Now are aware of content of that will of my grandfather, and my father had got least share among his 5 brother . 

Now my questions are :
1) can this property can be taken as ancestral property 

2) Is that registered WILL is valid he made that will between 2005 - 2007 .

3) Can my mother challenge this will in court and ask for equal share of property (1/5 share)

Please advise, thanks in Advance

 

By mistake i posted this question in expert section too 



Learning

 3 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     13 July 2012

Dear Ashish, 

 

This property is ancestral property in your and your father's hands, as soon as great grandfather died and the property devolved on grandfather and his brother. As regards that 50 % grandfather formed a coparcenory with his son & grandchildren. Now in 2007 apparently the grandfather has made an unequal will, this is of no effect and liable to be challenged and set aside for the simple reason that he diid not have the competency to do it, as he was owner only of undivided share to the tune of 1/6th and not more than that.  After your father's demise his 1/6th goes to your mother and you guys equally. File a suit for partition and permanent injunction seeking partition of the estate.

 

Feel free to talk !

1 Like

Ashish (owner)     13 July 2012

Originally posted by : Adv. Bharat Chugh

Dear Ashish, 

 

This property is ancestral property in your and your father's hands, as soon as great grandfather died and the property devolved on grandfather and his brother. As regards that 50 % grandfather formed a coparcenory with his son & grandchildren. Now in 2007 apparently the grandfather has made an unequal will, this is of no effect and liable to be challenged and set aside for the simple reason that he diid not have the competency to do it, as he was owner only of undivided share to the tune of 1/6th and not more than that.  After your father's demise his 1/6th goes to your mother and you guys equally. File a suit for partition and permanent injunction seeking partition of the estate.

 

Feel free to talk !

Thanks For the reply 

Sir after seeing your reply now i am confused , As i mentioned in last line that by mistake i have posted this question in Experts section too 

And their i got this below  reply  from Mr. Ajay Sethi 

ask your uncle to furnish copy of will . per the will property has been divided among his 5 sons .it is only after going through the contents of will would it be possible to advise . 
since it was your great grand father self acquired property on his death it was divided among his legal heirs including your grandfather . it would not be ancestral property . the will would be valid . 

it would be advisable to obtain probate of will

 

you also view at https://www.lawyersclubindia.com/experts/My-grandfather-made-registered-will-of-ancestral-property-321851.asp

 

i found another article on https://www.businessgyan.com/node/9220  this issue stating below lines 

 

Will and Section 8 : Any interest in any co-parcenary property can also be willed away and this share also goes out of the purview of the ancestral property. Also, if a father dies leaving self acquired property, his son will inherit it absolutely. The grandson cannot claim the same as ancestral because it was inherited under Section 8 of The Hindu Succession Act. In every instance it should be determined if a property was inherited by succession (section 8) or survivorship (section 6) or by testamentary (will) succession.

 

Please guide me , i am very much confused 

 

 

1 Like

surjit singh (Assistant)     15 July 2012

The general rule is when a person dies intestate (without any will) the property is equally didived among the coparcenors and down the line among the decendants. As regard theWILL it will have to be probated before the Court of law and then only it can be acted upon it. Presumingly it is held that there is a WILL then also the person making the WILL can do so only as regard is own share only. Since in your case the property was an inherited property the WILL can only be to the extent of share of the deceased only, and in that also it cannot be such that one of the decendant is disolved from the share in the property without sufficient cause.


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