Property dispute among the lrs of deceased person
jitender pawaria
(Querist) 21 October 2011
This query is : Resolved
R/Sir,
One Mr. A execute a will for his ancestral property and self acquired property. he have four sons and one daughter. according to the will he gave his ancestral property to his three sons and he gave his self acquired property to his 4th son`s wife and she was also put their signature on the will at the time of execution of will. his remaining three sons dn`t know about the will. after the death of Mr. A his 4th son (whose wife getting the share) got mutation in his favor along with his three brother in equal share and sold the land and his wife executed the sale deed in his favour which she got through the will and Mr. A nothing giving to his 4th son and daughter according to the will. will was executed by Mr. A in 1977 and he died in 1979.
after that his 4th son and daughter sold land from ancestral property which Mr. A gave is three sons.
now my question is that can his 4th son and daughter have right in ancestral property because he nothing given to both of them.
4th son of Mr. A addmitted the will.
R.Ramachandran
(Expert) 21 October 2011
Dear Mr. Jitender,
I am confining my answer only in regard to the 'ancestral property'.
Mr. "A" could not have WILLed away the entire ancestral property. At best, he could have WILLed away only his share in the 'ancestral property'.
As per the Proviso to the unamended Section 6 of Hindu Succession Act, 1956, upon death of a Hindu male who has an interest in the coparcenary property (note: ancestral property is one species of the coparcenary property; the other species being Hindu Joint family property), and who has left behind a Class-I female heir, his interest in the coparcenary property shall devolve by testementary or intestate succession, as the case may be, and not by survivorship.
Explanation 1 provides that the interest of a Hindu coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
Thus, when "A" died in the year 1979, leaving behind a Class-I female legal heir [viz., his wife and daughter(s)], the following things would happen by operation of law:
(1) The ancestral property will stand partitioned automatically. In such a partition, the deceased Mr. "A", his 4 sons and his wife would have got 1/6th share each.
(2) The 1/6th share which Mr. "A" would have devolved on his three sons as per the WILL left by him.
(3) Thus, while the three sons would get 1/6 + 1/18th = 2/9th share each; the fourth son would have only got 1/6th share. Similarly, the mother of the sons (widow of the deceased) also would have got only 1/6th share.
What Mr. "A" gave to the wife of his fourth son is from his personal property and it has nothing to do with the share which the fourth son has to get rightfully from the ancestral property.
You please apply the above legal position to the facts of the case in your hand and come to a conclusion as to correctness or otherwise of the actions of the parties.
prabhakar singh
(Expert) 24 October 2011
There can not be two opinion about ancestral
property,if at all it was in A's hand inherited from his father and created by his grand father.hence i confirm the view expressed by Mr.Ramachandran.
However the WILL of with regard to his self acquired properties shall be valid,if proved beyond doubt and will is not surrounded by circumstances of suspicions.
BUT LIMITATION IS AN OTHER POINT TO BE LOOKED INTO.
jitender pawaria
(Querist) 25 October 2011
Parbhakar Sir will confirmed by the attesting witness and please guide me what is role of limitation in present matter.
A inherited from his father and created by his grand father.
