Partition after will
Arjun Jaganathan
(Querist) 06 February 2015
This query is : Resolved
In relation to an ancestral property, a registered WILL was executed by the testator in the year 1980, claiming the property as his self acquired property. He bequeathed the properties to his 3 sons only leaving out his 3 daughters. In the year 1987, without revoking the WILL, the testator enters into a partition deed, dividing the property into 4 shares, retaining one share to him and the balance 3 shares to each of his 3 sons.
Question
Wheather the subsequent partition deed entered by the testator and his sons have effectively revoked the WILL as u/s 70 of the Indian Succession Act 1925?
ajay sethi
(Expert) 06 February 2015
once partition deed has been executed by testator in favour of his sons testator is no longer the owner of properties which has been transferred in favour of his 3 sons .however in respect of share which testator has retained will devolve on his 3sons
Guest
(Expert) 06 February 2015
Please clarify the following two points:
1) Any reason that the query has been related to the Indian succession Act, 1925, rather than the Hindu Succession Act, 1956? Is the testator not Hindu?
2) On account of what the will is unprivileged one?
Devajyoti Barman
(Expert) 06 February 2015
well once the query is replied on the above account I may post my reply.
prabhakar singh
(Expert) 06 February 2015
A WILL comes into force only when testator dies.
In his life time the testator remains owner despite the existence of the will and can deal with the property any way he likes without revoking the will.
ADV-JEEVAN PATIL, MUMBAI
(Expert) 06 February 2015
Will comes to an end when partition deed is made dividing same property
Rajendra K Goyal
(Expert) 07 February 2015
Agree with the expert prabhakar singh ji.
prabhakar singh
(Expert) 07 February 2015
I WOULD LIKE TO SAY THAT HOW CAN A FATHER, WHO IS EXCLUSIVE OWNER OF A PROPERTY,GET IT PARTITIONED AMONG HIS SONS AND HIM. IF HE HAS TO PART HIS OWNERSHIP PARTIALLY AMONG HIS SONS, RETAINING PART OF WITH HIM, DURING HIS LIFE TIME, THEN SUCH A TRANSFER WOULD BE CALLED GIFT IF MADE WITHOUT CONSIDERATION,AND SALE IN CASE OF CONSIDERATION;BUT IT CAN NEVER BE CALLED A
PARTITION.
IT MUST BE CLEAR TO EVERY BODY THAT PARTITION CAN TAKE PLACE ONLY BETWEEN CO OR JOINT OWNERS OR COPARCENERS.
Arjun Jaganathan
(Querist) 07 February 2015
I bring to your notice that
Query No.1: As far as testamentary succession is concerned, as per Sec 30 of the Hindu Succession Act 1956, the wills are governed by the Indian Succession Act, 1923 & hence I have referred the Indian Succession Act - Sec 70 - 72.
Query No. 2: The ordinary WILL executed in the ordinary course is known by the name un-privileged WILL and WILLS executed under extra-ordinary and emergency situation like mariners at Sea are called privileged WILLS
prabhakar singh
(Expert) 07 February 2015
I HOPE YOU HAVE NOT ADDRESSED IT TO ME.
MY REPLY IS BASED ON FULL UNDERSTANDING OF YOUR PREVIOUS QUERY.
Arjun Jaganathan
(Querist) 07 February 2015
Mr. Prabhakar Singh, I am sorry that I have not given the facts clearly. Now it is re-drafted. Kindly send your valuable opinion with case citation if any for which I will be highly obliged.
Jr. Advocate
Arjun
prabhakar singh
(Expert) 07 February 2015
Even after redraft bringing amendment in original query ,MY ANSWERS AND COMMENTS STATED HERE IN BEFORE REMAINS THE SAME.
FRANKLY SPEAKING YOU ARE FAILING TO UNDERSTAND THE TRUE IMPORT OF SECTION 70 WHICH RUNS AS FOLLOWS:
70. Revocation of unprivileged will or codicil.- No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privileged will, which purports to revoke his unprivileged will. This is a revocation.
prabhakar singh
(Expert) 07 February 2015
To bring home the true analysis of facts involved in your redrafted query what i find that you mean that there is'' ancestral property'' in hands of a father who had 03 sons and 03 daughters';it is that father who tastated a Will about this property.
After this will he entered into a partition deed with his sons.
I think you are facing a problem that you are unable to explain.
Is your case is about dispute of share in ancestral coparcenary property consisting
of a coparcenary of father and three sons?
Is the deed of partition registered?
What is the date of partition deed?
Are daughters claiming as co parceners?
Or it is dispute about that 1/4th that father retained as his share and question before you is that on whom the same shall legally be deemed to have devolved upon?
To say that this 1/4th estate would be governed by the testamentary succession
or by Hindu law of succession?
WHAT IS YOUR QUESTION STATE IN BLACK AND WHITE? BE NEAT ABOUT STATEMENT OF YOUR QUERY FOR TRUE GUIDANCE.
T. Kalaiselvan, Advocate
(Expert) 07 February 2015
Expert Mr. Prabhakar Singh has very clearly explained the law involving Will and further issues on it especially with regard to the author's original and subsequent query, which is more informative not only to laymen but also to lawyers practising in the field. The author may come out with his answer to the queries raised by the respectable expert in his last posted reply for more enlightenment.
