Urgent advice - will made on self acquired property, but, by mistake mentioned as ancestral property
PEER MOHAMED
(Querist) 15 December 2011
This query is : Resolved
Good day!
I am planning to buy a residential property at Chennai from a Vendor, who got the property inherited to him as the beneficiary of a registered WILL made by his grand father in 1992, bequeathing a residential land to an extent of 42.5 cents out of the total extent of 48 cents he owned (keeping 5.5 cents for him, which he himself later on sold to some one during 1997), having absolute possession and enjoyment and had patta, chitta , adangal etc., in his name. The WILL was made and got registered when the beneficiary was a minor of age 2.5 years and hence, keeping his father as the guardian. After the demise of the testator - the grand father in 1999 and after attaining 18 years, the beneficiary got executed the WILL and got transfered the Patta, Chitta, Adangal etc., in his favour and also taken the physical possession and enjoyment of the land, out of which the physically remaining part of about 22.5 cents, he is going to sell to me, as he has already sold about 2.10 cents to some one else during last year, some land has been donated to the community for Temple and some land had been taken by the Panchayat for Road purpose. Now, I have to buy both the 2.10 cents from the present owner of that plot and also the 22.5 cents from the beneficiary of the WILL. I had been given all the copy documents like Settlement Patta in favour of the testator issued by relevent authorities in 1991, FMB sketch, Patta, Chitta, Adangal in the name of the testator issued during 1991, EC since 1962 till date, Registered WILL, Death Certificate of the Testator (expired in Nov,1999), Death Certificate of the father of the beneficiary - only son of the testator (predeceased in Feb,1999), Death Cerficate of the mother of the Beneficiary (expired in an accident during Apr,2006), Legalheirship Certificate of the mother of the Beneficiary mentioning the Beneficiary as unmarried son & Beneficiary's elder Sister as married daughter as only two legal heirs, Patta, Chitta, Adangal etc., in the name of the beneficiary etc., which was given to our lawyer for obtaining legal opinion and found everything is in order by him and on his advice, the Sale Agreement was made between me and the Beneficiary of the WILL, advance amount is paid and we are on the process of registration of Sale Deed by tomorrow, 16.12.2011.
Now, when I had gone through all the papers as a final check with the draft of the Sale Deed, I found that in the WILL, it was written in Tamil as 'பூர்வீக சொந்தமாக பாத்தியப்பட்டு' meaning 'ANCESTRAL PROPERTY', instead of the use of correct words to mean as 'SELF ACQUIRED PROPERTY'.
All the rest part of the WILL is ok, as he has mentioned that he is the absolute owner in possession and enjoyment of the property, paying all taxes to the Government and got Patta in his sole name and also he has mentioned that after the demise of the testator, no one else from his other legal heirs can claim any rights in the above said property other than the beneficiary of the WILL.
I know that Ancestral property cannot be made Will. Hence, now I am under a big confusion whether the WILL itself is valid or not, as he has mentioned the word as 'பூர்வீக சொந்தமாக பாத்தியப்பட்டு' and hence, request you to please advise me by return as how to proceed further. Your prompt response by return would be highly appreciated.
For your information, I understand from the Vendor's family that the same land was inherited to the testator by a grant from a Jamin to him during 1947, where he was working, like many others of his neighbours in that locality got. But in the WILL document it was wrongly mentioned as ANCESTRAL PROPERTY by mistake instead of SELF ACQUIRED PROPERTY.
For more clarity, please note that the Testator wife was predeceased. Testator had got only two brothers as siblings, which both of them already expired. Testator had got four children, as one son and three daughters, whereas the son & his wife already expired and the three daughters are alive with their children. Testator's grand children through his son are one unmarried son (the sole Beneficiary) & one married daughter.
Now, please advise me how to proceed further in making a Sale Deed, where the 'Title of the Property' will be clearly conveyed. Whether the WILL and Execution there of stands valid? Who are all should be included in the Vendors list? What types of affidavits are required and from whom? Does the word 'பூர்வீக சொந்தமாக பாத்தியப்பட்டு' really means Ancestral Property? If it is a typographical error, is that any way to rectify the same and make the title proper to the sole ownership of the beneficiary, as mentioned in the WILL? Please help me out in this situation, as I have already paid advance.
Awaiting for your prompt response by return and thanking you in advance.
R.Ramachandran
(Expert) 15 December 2011
Dear Mr. Peer Mohammad,
Your doubt in the matter is very well placed and I appreciate your understanding of the issue and your concern.
However, certain facts revealed by you go to prove that the property is not "ancestral".
(1) When the father of the present vendor was alive, the grand father chose to give the property through WILL to his grandson, ignoring his own son. The act of the grand father in giving away the property through WILL to his grandson was known to his own son (i.e. the father of the present vendor) since his own son was made the Guardian. In spite of such knowledge, the father of the vendor kept quiet and did not protest that the property is being given away through WILL without giving his due share (if at all the property was "ancestral".).
But since the WILL was made only in the year 1992, the above argument may be punctured by saying that the son (i.e. father of the present vendor) did not protest because by not protesting he is able to ensure that the entire property of his father comes to the share of his own family though through his own son. If he has not protested, he has done so with selfish motive. In case if he had protested, then the property ought to have been shared along with his three sisters as well, since by that time, the Tamilnadu Amendment Act had come into force with effect from 25.3.1989 granting equal coparcenary status to the daughters as well.
But, even after the death of their father in the year 1999, neither the three daughters nor their children, did not make any claim for any share in the property so far (it is almost 12 years over) is also an additional point to say that the property does not appear to be "ancestral".
Further more, as you say, a small portion of the land, i.e. 5.5 cents also stands sold to a third party very recently without any objection from any quarter.
Considering the above facts and circumstances, one can safely conclude that the property is not "ancestral".
PEER MOHAMED
(Querist) 15 December 2011
Dear Advt. R. Ramachandran Sir,
I sincerely thank your goodself for your time, concern and expertised advice, which reached me in prompt and really releived me from the stress.
I understand the points made out by you and really appreciate your involvement in the subject matter.
Thanks and regards,
Raj Kumar Makkad
(Expert) 16 December 2011
I do agree with the advice of Ramachandran G.
Guest
(Expert) 16 December 2011
I agree with Shri Ramachandran.
PEER MOHAMED
(Querist) 17 December 2011
THANK YOU VERY MUCH MR.DHINGRA SHAB.
PEER MOHAMED
(Querist) 17 December 2011
Dear Advt. Raj Kumar Makkad Sir,
Good day! I sincerely thank you very much for spending your valuable time, analysing and answering my query.
A.Peer Mohamed
