Can will of ancestral property be challenged?

Deeksha nayyer (Querist) 12 June 2020 This query is : Resolved
Dear Experts..

My Maternal grandfather had some acres of ancestral Land..
The Land is ancestral in nature because it has been passed from many generations and it has not been divided once.

Recently I found that , my maternal grandfather has made a registered will and he stated in his registered will that all the ancestral property will be passed to his Sons.

My Maternal grandfather didn't gave any share to my mother.

MY QUESTION IS - DO MY MOTHER HAS RIGHT IN THIS ANCESTRAL PROPERTY?

WHAT SHOULD WE DO NOW? WHAT SUIT SHOULD WE FILE?

Thanks in advance
for all hardworking Experts..

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Isaac Gabriel (Expert) 12 June 2020
You can file a suit chllencing the will incuding others as respondents.

R.Ranganathan (Expert) 12 June 2020
You have stated that your maternal grandfather got the property through his ancestors. You have not mentioned about the number of generations since no property can be tied down in perpetuity. Maybe when your maternal grandfather obtained the rights over the property it would have become his personal property due to passage of time. So kindly state the number of generations the property was passed on to your maternal grandfather for giving proper advice.

Deeksha nayyer (Querist) 12 June 2020
Sir, The property is ancestral in nature because property is being inherited from more than 4 generations.
I know the names of our ancestor of 4 generations, to get name of ancestors after 4 generations I have to check the documents..

Raj Kumar Makkad (Expert) 12 June 2020
When an author is firm on the facts and repeating the same, we have no right to suspect over him rather providing suitable reply.

Anyway, the action on the part of your maternal grand-father is illegal and such will and the inheritance of the property on the basis of said will is required to be got set aside from the civil court by filing a civil suit for partition and possession on the basis of natural succession of your maternal-grandfather by your father, if she is alive.

kavksatyanarayana (Expert) 12 June 2020
As per me, if the property is ancestral for more than 4 generations, it shall be deemed to be a self-acquired property of your maternal grandfather. So he has the right to do it as he wishes.

Deeksha nayyer (Querist) 12 June 2020
@kavksatyanarayana Sir, We have clarified this from tehsildar and patwari and also checked the ancestral chain.
It is Ancestral property Sir.

Deeksha nayyer (Querist) 12 June 2020
@Raj Kumar Makkad Sir, Thank you for the reply, It was really helpful for me.

R.Ranganathan (Expert) 12 June 2020
Sorry in this matter, I differ from Mr. Raj Kumar Makkad and agree with Mr. Kvaksatyanarayana. No court can go against the rule of perpetuity.

Deeksha nayyer (Querist) 12 June 2020
Sir, My great maternal grandfather, great great maternal grandfather and so...on everyone died without any will (inestate), never any settlement deed, partition deed no type of deed executed.
In the revenue office we have clarified that the property is ancestral.

I don't understand Rule of perpetuity
Experts please clarify.

Raj Kumar Makkad (Expert) 12 June 2020
In order to decide the question, we must first notice the difference between the joint Hindu family and
coparcenary. Coparcenary, as observed in Surjit Lal Chhabda v. Commissioner of Income Tax, Bombay 1976 (3) SCC 142, is a narrower body than the joint Hindu family.Under the Mitakshara Hindu Law, any property inherited by a male Hindu from his father, father’s father or father’s father’s father is ancestral property. The male descendant who inherits the property in the above manner did not inherit the property absolutely as a separate property, but as coparcenary property. Coparcenary consists of only those persons who acquire by birth an interest in the coparcenary property. Succession in coparcenary property is by survivorship. No coparcener can dispose of his undivided coparcenary interest by way of gift except with the consent of the other coparceners. There are restrictions on alienation of the coparcenary property, which would be legally valid only when made by the whole body of coparceners where they are adults, by manager/Karta, or father subject to limits/conditions, and by a sole surviving coparcener in some circumstances (see Mulla Hindu Law 22nd Edition, 2016 at page 397, § 253 – ‘Who may alienate coparcenary property’).

Raj Kumar Makkad (Expert) 12 June 2020
Outside the limits of coparcenary, there is a fringe of persons, both male and female, who constitute the undivided or joint family which consists of lineal descendants from a former ancestor and includes their wives and unmarried daughters. Joint Hindu family is, thus, a larger body consisting of group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. An individual who is a member of the joint Hindu family can hold separate or individual property and in addition, if he is a coparcener, have an interest in the coparcenary property of the joint Hindu family..

Raj Kumar Makkad (Expert) 12 June 2020
Kindly also go through the Landmark Judgment pronounced by Supreme Court of India yesterday in case titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid the Law on to the Concept of Ancestral Property, the short contents have also been given in the following news item:

https://www.latestlaws.com/latest-news/supreme-court-puts-final-death-nail-on-concepts-of-ancestral-property-joint-family-property-read-judgment/

P. Venu (Expert) 13 June 2020
Your mother can file a suit for partition with the averment that the property is ancestral. Let the Court decide issues on merit.

Raj Kumar Makkad (Expert) 13 June 2020
Civil suit is the sole remedy in the given facts.

Deeksha nayyer (Querist) 13 June 2020
Thank you Experts.....

Rajendra K Goyal (Expert) 13 June 2020
In the ancestral property, your mother has a share in the property.

The will can be challenged.

Dr J C Vashista (Expert) 13 June 2020
Your mother has a share in her ancestral property for which she is required to file a suit for partition, possession, permanent injunction and mesne profits through a local prudent lawyer.
Your grandfather may execute a will in favour of anyone for his share in the ancestral property inherited by him.
I fully agree with expert advise of Mr. Raj Kumar Makkad, Mr. P Venu and Mr. Rajendra K Goyal. However, I respectfully disagree with expert Mr. KAVK Satyanarayana and Mr. Rangnathan.

Dr J C Vashista (Expert) 13 June 2020

Rule against perpetuity as advised by experts Mr. KAVK Satyanaryana and Mr. Rangnathan has following conditions:
The essential conditions of the rule against perpetuity as given in Section 14 of the transfer of property act 1882 are as follows:
1. There is a transfer of property.
2. The transfer is for the ultimate benefit of an unborn person who it given absolute interest.
3. The vesting of interest in favor of ultimate beneficiary is preceded by life or limited interests of living person (s).
4. The ultimate beneficiary must come into existence before the death of the last preceding living person.
5. Vesting of interest in favor of ultimate beneficiary may be postponed only up to the life or lives of living persons plus minority of ultimate beneficiary; but not beyond that.

Sudhir Kumar, Advocate (Expert) 13 June 2020
when was the WILL executed.

Deeksha nayyer (Querist) 13 June 2020
@Sudhir Kumar sir.. Will was execute 5 months back in 2019.

Thank you for such a brief explanation to DR J C VASHISTA SIR....

Rajendra K Goyal (Expert) 13 June 2020
Apart from will, your mother can file suit for partition of the ancestral property.

Dr J C Vashista (Expert) 16 June 2020
You are most welcome Deeksha Nayyer ji.

Raj Kumar Makkad (Expert) 16 June 2020
You are always welcome as and when require any legal advice.