dughters right in fathers ancestral property
tarun
(Querist) 12 June 2011
This query is : Resolved
Please advice
A alongwith his 1 brother and 1 sister acquire equal share in ancestral property. A transfer his 1/3rd share in favour of his brother by executing will in 1982. A died in 1983 leaving behind his wife and daughter. Does A' daughter and wife has right in the ancestral property of A. Can A's daughter file a suit for partition..?
Devajyoti Barman
(Expert) 12 June 2011
A can not transfer his self acquired property depriving his legal heir- daughter.
Guest
(Expert) 12 June 2011
A can transfer the property to some one other and it can be challenged in the court and must be proved in the court
Jebaraj Jasper Jacob
(Expert) 12 June 2011
If A acquires the ancestral property by way of partition, then the property vested on him as though it was an self acquired property and hence A has every right to execute will in favour of any person.
R.Ramachandran
(Expert) 13 June 2011
Section 30 of the HSA 1956 provides that "Any hindu may dispose of by will or other testamentary disposition any property which is capable ofbeing so disposed of by him or her".
In other words, after the coming into force of HSA 1956, a person having coparcenary interest can make a will of HIS UNDIVIDED SHARE (not the whole property) in the property.
Once such a will has been made, after the death of that person, his share will go by way of the WILL and not by way of inheritance.
In the instant case, the coparcenar seems to have bequeathed the entire coparcenary property (NOT HIS UNDIVIDED SHARE ALONE) which is not correct. The wife and daughter will get their 1/3rd share and only the remaining 1/3rd share which is the share that would be falling to "A" can be given by way of will.
The daughter and wife will succeed in getting the remaining 2/3rd share in the property. Amongst them they will get 1/3rd each.
R.Ramachandran
(Expert) 13 June 2011
In my above reply, the last two paragraphs should be replaced and read as under:
"In the instant case, the coparcenar seems to have bequeathed the entire coparcenary property (NOT HIS UNDIVIDED SHARE ALONE) which is not correct. The daughter will get her 1/2 share and only the remaining 1/2 share which is the share that would be falling to "A" can be given by way of will."
prabhakar singh
(Expert) 13 June 2011
"A alongwith his 1 brother and 1 sister acquire equal share in ancestral property."
"A transfer his 1/3rd share in favour of his brother by executing will in 1982. "
"A died in 1983 leaving behind his wife and daughter."
THE ABOVE ARE THE FACTS GIVEN BY YOU .AND THEN YOU PROCEED TO ASK:Does A' daughter and wife has right in the ancestral property of A.? Can A's daughter file a suit for partition..??
THE RIGHT WAY TO DISCUSS YOUR PROBLEM IS THIS1)FIRST TO KNOW OF WHICH PERSONAL LAW THE PARTIES ARE SUBJECT?? YOU HAVE NOT TOLD,BUT I PROCEED INFER THAT PARTIES ARE HINDU AS YOU HAVE USED A WORD"ancestral property".
NO DOUBT YOUR "A" HAD RIGHT TO WILL IT TO HIS BROTHER OR ANY BODY ,NO LAW PROHIBITS HIM FROM DOING SO.
BUT YOUR CONCERN NOW IS,ABOUT THE RIGHTS OF
"A"S'WIDOW AND DAUGHTER.YOU WANT TO KNOW THEIR REMEDY?????????/
MY ANSWER LIES IN THINKING THAT HAD THERE NOT BEEN A "WILL",THE PROPERTY OF "A" WOULD HAVE DEVOLVED NATURALLY ON "A"'S WIDOW AND DAUGHTER, THERE FORE THEY HAVE RIGHT TO SUE,TO CHALLENGE THE "WILL",AND SEEK THEIR SHARE IN PROPERTY BY PARTITION.
YOU HAVE NOT DISCLOSED THE STATUS OF THE "WILL",AS TO THE FACT,IF IT IS NOTARIZED,OR REGISTERED AND HOW THE WIDOW AND DAUGHTER HAS COME TO KNOW ABUT IT IN YEAR 2011,WHILE "A" DIED IN YEAR 1983. HAD THERE BEEN ANY MUTATION OF RECORDS OF RIGHT ON THE BASIS OF THIS "WILL" WITH IN KNOWLEDGE OF THIS WIDOW AND DAUGHTER??????/THESE FACTS HAVE A GREAT BEARING IN DRAFTING A PLAINT OF THIS CASE AS ON ITS FACE CLAIM SEEMS TO HAVE BEEN BARRED BY TIME,AS NO ACTION HAS BEEN TAKEN EARLIER BY THE WIDOW AND DAUGHTER WELL WITH IN TIME PRESCRIBED BY LAW(3 years from the date of knowledge of will for its'cancellation,or with in12 years from its knowledge for partition,as beneficiary of "will" can claim their complete ouster from property )
HOWEVER EVEN IF AFTER CONSIDERING ABOVE POINTS, YOU FIND THAT THE DESIRED TRAIN IS LEFT FOR HAVING BEEN LATE,THE PROPERTY SHALL IN CASE OF PROOF OF WILL, SHALL BE DEEMED TO HAVE PASSRD ON "A"S'BROTHER WITH BURDEN OF CHARGE OF MAINTAINING THE WIDOW AND DAUGHTER IN CASE DAUGHTER IS UNMARRIED,ALSO FOR PROVISION OF HER MARRIAGE,AND SUCH A SUIT STILL LIES AND ARREARS OF PAST 3YEARS AND FUTURE DUES CAN BE REALIZED,THE SUIT SHOULD BE FILED AS INDIGENT SHOWING THAT DAUGHTER AND WIDOW HAVE NO MEANS TO PAY COURT FEES.BUT EVEN THIS SUIT SHALL NOT LIE IF THERE ARE OTHER PROPERTIES LEFT BY "A" FOR HER WIDOW AND DAUGHTER.
GOOD LUCK!
