Ancestral Property
Rajachandran Nair
(Querist) 10 January 2011
This query is : Resolved
Hi,
My father had got so property at North Parur, Ernakulam Distict from my grandfather. Both of the are dead now. My father had given the ancestral property to my mother as gift. Now even my mother is dead. I have 6 brothers and 2 sisters and we all Hindu. All my brothers and sisters ae working out of Kerala. Only my youngest brother was staying with my parents. My mother had made a WILL on this ancestral property and given it to my younger brother. All my brothers and sisters were not at all informed about this ancestral property being gifted to my mother and even my mother making the WILL on my brother name. My mother passed away in January 2007 and my father passed away in 2007. IS there any right that we all brothers and sisters fight for equal right on the property. My younger brother was not willing to show us the WILL. Please advice me.
R.Ramachandran
(Expert) 10 January 2011
Just because your father got some property from your grand father does not in itself mean that it is an ancestral property. [If the property in the hand of your grand father was his self acquired property - then it cannot be called ancestral property unless your grand father had given the property to your father with the clear indication that it should enure to the benefit of his grand children.]
If the property had come to your father after the death of your grand father - in that case your father might have inherited the intestate property, in which case also it would be his personal property.
BUT FOR THE PROPERTY BEING YOUR FATHER'S PERSONAL PROPERTY, HE COULD NOT GIVEN THE PROPERTY BY WAY OF WILL TO YOUR MOTHER.
If the property had been given in WILL to your mother, then it is her personal property and she can do anything with it.
If she had given it in WILL to your youngest brother she has every right to do so.
At best, you brothers / sisters can ask for your share in the property as legal heirs (as though you are not aware about the existence of any WILL). If there is any WILL, then your youngest brother has to come up before the court and show it. Thereupon, you can challenge the WILL on the ground that it was obtained by undue influence, fraud, coercion, pressure etc.
Devajyoti Barman
(Expert) 10 January 2011
If the properties are indeed anscestral then file a suit for partition immediately to clam your due share where all the issues of gift and will could be aptly agitated.
Amit Minocha
(Expert) 10 January 2011
claim your right thru the Court she can only render her share to your brother and not all. Also do claim stay from creation of any third party interest in the property by any of the parties.
malipeddi jaggarao
(Expert) 11 January 2011
There is a difference of opinion in the advice of Mr.Ramachandran and Mr.Amit Minocha. I am not clear as to - if the property of the grand father comes into the hands of father, is it not ancestral property as far as rights of grand children concerned? In the instant case how the mother can Will away the property passed on her by her husband who got it from his father? Can anybody throw some more light on the issue?
R.Ramachandran
(Expert) 11 January 2011
Dear Mr. M.J. Rao,
My view is based on the Supreme Court decision on the subject. Please see the attached file.
R.venkatesh Naidu
(Expert) 11 January 2011
i agreed Mr. Ramachandran and Mr.kriti kar tripathi.
Originally the property was ancestral you will prove and then you may file a suit for paratition on your youngest brother.
In case the will has been made under coercion, or any other unlaw ful activities by your brother got from your mother, you may also file a suit against your younger brother.
Pritam Saini, Advocate
(Expert) 11 January 2011
I tottally disagree with you Mr.Ramachandran.Because as per law of mitakshra , copacenery property means,property inherited from father,grand father,great grand father is hindu copacenery property.If i am not incorrect fact of case is diffrent in judgement mentioned by you because in that case property was not got by sons by way of inheritence.A person can do anything about his self aquired property.But in the present case facts are diffrent.As per my view his father had only right to gift aways to his 1/8 share to his wife.Therefore he should file suit for partition with seek declaration to gift is void,without authority and will is also fake and waste paper never executed.
R.Ramachandran
(Expert) 11 January 2011
Dear Mr. Pritam,
You are welcome to disagree with me. You can definitely hold your views. I respect that.
Rajachandran Nair
(Querist) 12 January 2011
Please let me know whether THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 # NO. 39 OF 2005 $ [5th September, 2005.] will come into force in this case, and it that is applicable will my brothers and sisters will be entitled for this property
R.Ramachandran
(Expert) 12 January 2011
Dear Mr. Rajachandran,
Instead of simply saying "My father had got the property from my grandfather",
you have to give the following details:
(1) Whether the property was self-acquired property of your grand father or how he got the property? Have you got any document in that respect?
(2) If it is self acquired property of your grand father, then whether (i) he distributed the property during his life time to your father and other son(s) / daughter(s) or (ii) your father got his share in the property after death of your grand father?
(3) If answer to (2)(i) is in the affirmative, then from the document it has to be seen whether your grand father intended that the property given to your father is to be treated as 'ancestral property' or not. If nothing has been specifically stated that it should be treated as 'ancestral property', then the property cannot be treated as ancestral property.
(4) On the contrary, if your grand father had got the property by way of partition of the JOINT HUNDU FAMILY PROPERTY, then the said property would be 'ancestral property' in the hand of your father.
You have to come up with more details.
Rajachandran Nair
(Querist) 13 January 2011
(1) Whether the property was self-acquired property of your grand father or how he got the property? Have you got any document in that respect?
Ans: My grandfather got the property for my great grand father. Documents available.
(2) If it is self acquired property of your grand father, then whether (i) he distributed the property during his life time to your father and other son(s) / daughter(s) or (ii) your father got his share in the property after death of your grand father?
The property was equally distrubuted to my father and his brothers and sisters before the death of my grandfather. The property was partitioned after the death of my grandfather as per his terms in the WILL.
(3) If answer to (2)(i) is in the affirmative, then from the document it has to be seen whether your grand father intended that the property given to your father is to be treated as 'ancestral property' or not. If nothing has been specifically stated that it should be treated as 'ancestral property', then the property cannot be treated as ancestral property.
Ans: Nothing is mentioned anything about being treated as ancestral property.
(4) On the contrary, if your grand father had got the property by way of partition of the JOINT HUNDU FAMILY PROPERTY, then the said property would be 'ancestral property' in the hand of your father.
Ans: Yes my grandfather has got the property by way of partition.
With these answer please advice what should i do to proceed.
R.Ramachandran
(Expert) 13 January 2011
Since nothing is mentioned about the property to be treated as ancestral property, the property cannot be said to be 'ancestral'. Therefore the property would be 'personal property' in the hands of your father.
As already expressed by me on 10.1.2011, the property being his personal property, your father was in a position to give it through WILL to your mother. Thereafter, the said property became the personal property of your mother and she can do anything with it.
If she had given it in WILL to your youngest brother she has every right to do so.
At best, you brothers / sisters can ask for your share in the property as legal heirs (as though you are not aware about the existence of any WILL). If there is any WILL, then your youngest brother has to come up before the court and show it. Thereupon, you can challenge the WILL on the ground that it was obtained by undue influence, fraud, coercion, pressure etc.
senthilkumar
(Expert) 10 January 2013
may i know the status of my father's property got by partition from my grand father is of ancestral nature or self acquired
