KasiGRajU 23 August 2021

Property rights of daughters

We are two brothers and three sisters with father and mother having passed away. During lifetime of father, he acquired a site out of own earnings in his name. A portion of the site was sold for meeting expenses of the youngest daughter and also for assisting the other two daughters. The common understanding was that the remaining portion of the site would be shared between the two sons, as the daughters were well provided for and as the two sons had contributed to the family as also taken care of the parents. During their lifetime, a partition suit was filed amongst the brothers of our father, subject matter being ancestral properties at a village. This site was not subject matter of the suit at any time, except that when a property settlement agreement was reached between the litigants [namely the brothers of our father] even the self acquired properties of the brothers was listed in the settlement agreement based on which the partition suit was dismissed as settled out of Court. Now, ten years after passing away of our father, the sisters one and two have filed a partition suit against the two sons and sister number three, claiming that the site is ancestral property and they are eligible for one fifth of the site as also all the other ancestral properties. Our father had executed two wills. In the first will he had willed a portion of the site to the three sisters jointly and revoked the same in the second and last will stating the reasons that the daughters were well provided for and the site was to be shared between the two brothers. This was discussed during life time of our father and all had agreed, verbally. The partition suit was filed in 2012 and is now at issues stage after going through five IAs which were filed for summary judgement. Kindly opine, no just for one side but as a judge would view the issue and order. Thanks and regards.

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Ananya Gosain 31 August 2021

Under the Indian Succession Act, the distribution of the property after death is divided mainly into two parts, intestate succession, and testamentary succession. Intestate succession takes place according to the law of inheritance applicable to the deceased person (based on religion) in which the deceased person had no choice or preference as to the distribution of his/her property. Testamentary succession takes place when the deceased person has created a Will, directing the distribution of property after his/her death. The property distribution is done through the creation of Will as per the wish of the deceased. Testamentary succession for Hindus is as per the Indian Succession Act, 1925. Hence, any person who leaves a valid Will, being a Hindu as per the Act would be governed by the Indian Succession Act, 1956. People who come under the jurisdiction of the Hindu Succession Act, can bequeath their property to any person, even excluding relatives, through the execution of a will.In case of an ancestral property, generally it is needed to be shared with other rightful beneficiaries. However, your father can bequeath his share to whosoever including a single person. Since your father's last will stated the site to be shared between two brothers, it will be executed. A will cannot be changed easily. For more knowledge on this you may refer https://www.lawyersclubindia.com/articles/hindu-succession-act-11929.asp Regards

KasiGRajU 12 September 2021

Madam, grateful for your opinion. I understand that ancestral property is that which is inherited over four generations. The subject property in dispute was purchased by our father in his individual name. However, in a partition suit in which the property was not in the suit schedule, a reference was made in the settlement reached between the litigants [ brothers of our father]. Based on this agreements the sisters are contending that the property is ancestral and that our father had no right to will the property. Kindly opine and oblige. with high regards

ADVOCATE NITIN KAPOOR (Advocate) 12 September 2021

Though the facts of the case are not clear but as far as I can ascertain it is an individual property which was devolved through testamentary succession. As far as will is concerned it is the last will which will sustain but you will have to prove the will. therefore, according to me partition suit is not maintainable in the light of the present facts and circumstances. Regards, Nitin Kapoor 8800692624