no mothershare by father or brothers

Querist : Anonymous (Querist) 27 October 2010 This query is : Resolved
sir,i am 58yrs female ,bangalore my father did not give share to me or my mother ,he made a will to my five brothers
from ancestral property in 1970 and died
the brothers divided the property themselves in 1976 at that time my mother was alive and she died in 1985.now they are enjoying them selves.
so i can file a suit on my brothers prior to 1956 hindu law that i want a share in my mothers share, they did not mention my mothers name by my father when he did will in 1970 or brothers did not mention her name while partition in 1976.my father died in 1972 and my mother died in 1985
.the property is not my fathers self aquired it is his ancestral property
pls ans this question.

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Devajyoti Barman (Expert) 27 October 2010
If the property is self acquired then you have got share in it in equal proportion with those of your brothers. Let me clear as to the status of the Will. Has the Probate of the same been obtained? If not then at the time of Probate you can raise your objection.
But most importantly you have to file a suit for divorce claiming your equal undivided share in your father's property along with a petition for temporary injunction so they could transfer any part of it during the pendency of this suit.

Querist : Anonymous (Querist) 27 October 2010
sir
on which point can i file a suit on my brothers

Devajyoti Barman (Expert) 27 October 2010
On the point that after the death of your after you by way of rule inheritance got the share in the property and your father being not its absolute owner had no right to transfer by way fo Will.

R.Ramachandran (Expert) 27 October 2010
Dear Anonymous,
According to you, your father made a Will of his ancestral property in favour of his sons. He did not give the property either to his wife or to his daughters.
You want to know whether you can file a suit claiming your share (at least in your mother's share) in the property.
In this regard, let me clarify the position to you as under:
According to Section 6 (unamended) of HSA 1956, when a male hindu having interest in a coparcenary property dies, leaving a surviving female relative specified in Class-I schedule, his interest in the coparcenary property shall devolve by testamentary or intestate succession as the case may be.
Testementary devolution means, either through Will or Gift etc.
In this case, your father having interest in co-parcenary property has disposed of the property by means of a Will in favour of his sons. Thus, the co-parcenary property will devolve on the sons in view of the Will.
Since the property stands disposed of through testement, the property cannot be said to be intestate. Since it is not intestate, the property cannot be inherited by the Class-I legal heirs of your father.
Thus, in view of the Will created by your late father, only the sons are entitled to the property and the daughters cannot stake a claim.