Right and share in the ancestral property
Querist :
Anonymous
(Querist) 18 September 2011
This query is : Resolved
Sir ,
We are two sisters ( myself eldest -married in 1980 ) and two brothers and my mother ( widow -expired ) . Our's is an Ancestral property located in Karnataka inherited from my grandfather- self acquired by him during his lifetime .(expired). My father (expired ) had four brother's ( all expired- recently ) and he alone inherited the entire property according to will which according to the records he got entered his name in the RR 2 years before his father’s death and that too on the basis of a " WILL" (The said Document doesn't exist - as issued by the Registrar authorities on the date claimed (which is not there actually) .
My father got a will and gift deed registered in my two brother's favor in the year 1980 .
My concern's
1. Whether my father is an absolute owner in such circumstances - where the alleged will does not exist and neither is it available as a certified copy - as issued by the authorites saying that the alleged will is not registered on the date claimed as it is not there in their records to be in particular .
2. How and what about the status of the Will and Gift deed registered by my father in my brothers names. Are they valid by themselves inherently in such a situation .What is the legal remedy
3. What is the quantum of my share if i want to seek my share in the property
4. From whom will i be getting the share ? Is it from my father or from my grandfather.
4. Total land is 10 guntas . What will be my share in terms of numerical value .
Please reply .Would be very gratefull .
With Regards
R.Ramachandran
(Expert) 18 September 2011
1. If it was the self-acquired property of your grand father, then he can give that property by means of a WILL to anybody. If he had given his property by WILL to your father, then the property is your father's personal property and not at all an 'ancestral property'.
2. If the WILL in favour of your father from his father did not exist (as you claim), then the property ought to have gone by way of inheritance equally amongst the children and wife of your grand father. If at all anybody should have objection about the existence or non-existence of the WILL it was your father's mother, brothers and sisters and nobody else.
3. Since none of your father's siblings seem to have any objection about the WILL, you cannot question the same.
4. Since the property is the personal property of your father, if he had either gifted or WILLed the same in favour of your brother, your father is well within his rights and nobody can question the same.
5. Since your father had already disposed of the property during his life time, either through WILL or through GIFT, there is nothing that was available after his death on which anyone of you can claim any share by way of inheritance.
6. Thus, none of you have any share in the property of your father, which he had already disposed of during his life time.
Chanchal Nag Chowdhury
(Expert) 18 September 2011
Question extremely confusing. How can 2 registered docs. be untraceable? then how do U know about their existence?
The rule is that succession opens at the time of death & only those heirs get benefit who were existing at the time.
ajay sethi
(Expert) 18 September 2011
i agree with advice of expert Mr ramchandran . your grandfather has by will bequeathed his entire property to your father by will . your father 4 brothers did not dispute genuine nwess of the will and accepted it as gospel truth .
as mr ramchandran rightly pointed out the sisters dont have nay share in property as father has validly by will or gift bequeathed the property to your brothers
Raj Kumar Makkad
(Expert) 18 September 2011
It is difficult to be agree with Ramachandran and Ajay that only those legal heirs of grand-father of querist were entitled to raise objection against the non-existing will and that the querist has no legal right therein.
As the querist is duly legal heir of her father so she is within her legal rights to the roots of legal title of her brothers. As there is no alleged registered will found in the registration record so it cannot be relied upon thus the title of the father of the querist is defective and further he was not entitled to dispose off entire property in favour of his sons either during his life time by way of gift deed or by way of a will.
The querist is entitled to inherit 1/4 share of her father in the mentioned property whereas her father was entitled for only 1/4 share therein thus the actual share of the querist is 1/16 share and she can challenge the revenue record and further alleged gift deed or will as the case may be and can claim for partition and possession accordingly before civil court.
ajay sethi
(Expert) 18 September 2011
1)if the sisters challenge the revenue record she might be left with a pittance .
2)if we aceept that father was not the only legal heir then his 4 brothers also would be entilted to share in the property .
3) why were the 4 brother silent for number of years? have you carried out a detailed search in the revenue records . ?
4)it might open a pandora box . practically speaking the suit may go on for number of years . it at all you desire an amicable settlement inform your brothers of the alleged lacunae and try to find an amicable settlement in the immediate family rather than going to court .
Querist :
Anonymous
(Querist) 18 September 2011
Brothers of my father were treated in such a way that they din make a way back to the place where the property is currently situated . In other words ,they got themselves shifted to another city and for reasons not known never ever claimed or disputed the alleged will as claimed by my father which i have even made an attempt to find out in the revenue records .The result being negative . As per my knowledge it was the self respect of those people which obstructed them from proceeding to court an claiming their right in the court at that time.
AN the present situation is somewhat like this
1. My father and all his four brothers have expired
2. Alleged will is in favour of my father
( Why I say so is because Letter issued by the Registrar's Office saying no will is made by grandfather in the name of my father whereas he has entered his name in the RR as stating " per will " ( as stated supra ) .
# The alleged will has not been probated in court of jurisdiction
R.Ramachandran
(Expert) 18 September 2011
OK. Coming to your point.
There is no WILL from your grand father in favour of your father.
If that be so, what would be the scenario. The property left behind by your grand father has to go equally by way of inheritance to all his legal heirs i.e. your father and his four brothers. That means your father would have got 1/5th share (instead of the full share as per the alleged WILL).
Even the 1/5th share which your father would have got (in the event of there being no WILL at all in his favour), would be his personal property and not "ancestral property".
As already indicated since the property is the personal property of your father, if he had either gifted or WILLed the same in favour of your brother, your father is well within his rights and nobody can question the same. (Of course your brother would not have got the entire property but only 1/5th of it. The rest 4/5th would be that of your father's 4 brothers each one of them taking 1/5th).
Since your father had already disposed of the property (assume for the sake of the present discussion that it was only 1/th share in the entire property and not entire property left behind by your grand father) during his life time, either through WILL or through GIFT, there is nothing that was available after his death on which anyone of you can claim any share by way of inheritance.
Thus, my answer would remain the same i.e. none of you have any share in the property of your father, which he had already disposed of during his life time.
prabhakar singh
(Expert) 18 September 2011
FACTS STATED BY YOU::
1]grand father acquired property in Karnataka;
2]he is dead;
3]he had 4sons(all dead).{including or excluding your father?}any way.......;
4]your father[now expired]" alone inherited the entire property according to will which according to the records he got entered his name in the RR 2 years before his father’s death and that too on the basis of a " WILL" (The said Document doesn't exist - as issued by the Registrar authorities on the date claimed (which is not there actually)".
5]your " father got a will and gift deed registered in my two brother's favor in the year 1980"
ANALYSIS OF YOUR OWN FACTS FIRST:::
1]The property was self acquired property of your grand father is an admitted fact to you.Hence in his hand it was not a ancestral coparcenary property and his sons were not having any right or share along with him is also a derived admitted position of fact.
HENCE YOUR GRAND FATHER WAS ABSOLUTE OWNER WITH ALL EXCLUSIVE RIGHTS TO TRANSFER BY SALE ,GIFT,WILL etc.,with out any interference from his sons.None of them could legally check him.
At this stage what is SURPRISING IS that your father got his name entered even two years PRIOR TO DEATH of your grand father that too by a WILL.
THIS IS IMPOSSIBLE UNLESS IT WAS A GIFT DEED,AND NOT A WILL.
A NEXT POSSIBILITY CAN BE PRESUMED THAT YOUR FATHER MISREPRESENTED THE DEATH OF YOUR GRAND FATHER AND GOT HIS OWN NAME ENTERED IN RR2 ON A BASIS OF WILL WHICH WAS UNREGISTERED WILL [because you say no registered exists at registration office].
AN OTHER POSSIBILITY SURMISABLE IS THAT ACTUALLY IT WAS A REGISTERED GIFT DEED,THAT IS WHY IT WAS ENFORCED DURING LIFE TIME OF YOUR GRAND FATHER BY YOUR FATHER AND ENTRY IN RR2 WAS ACCORDINGLY RECORDED.
YOU MIGHT HAVE GOT SEARCHED REGISTER OF WILL,TRY TO SEARCH IN REGISTER OF SALES AND GIFT,IF ANY THING FOUND OR NOT.
facts still wanted ::::::::??????????
THE FURTHER WANTED FACTS ARE::
1. THAT your father were 5 brothers including him or only 4 including him???
whether they 4or 5 ,as the case may be,have left behind them their widows,sons,and daughters or not??
2.If yes,a detail of each of them is required which you have not furnished????
Although these facts are required only when
you want to dispute that your grand father made no WILL at all in favor of your father,and if 4 or 3 brothers of your father have died living any heir behind them,it shall affect shares of you all.
By hypothesis if i presume that your grand father did not make any will in favor of your father and died living 5 sons and a widow ,then share of your father reduces to 1/5 or 1/4 even after death of your grand mother so it is going 1/4 or 1/5 in each branch.
On such a hypothesis share coming to your father can not in any case can be more than 1/4th which even if you succeed in claiming
your right you all being 4 each of you will get1/4 of 1/4.
SO THESE ARE THE REASONS THAT I AM LOOKING FORWARD FOR MORE DETAILS!!!!!!!!!
IF YOU WILL RETURN BACK I SHALL DISCUS IT AGAIN.
NOW I PROCEED TO GIVE YOU ANSWERS ACCORDING TO YOUR QUESTIONS::::
1. Whether my father is an absolute owner in such circumstances - where the alleged will does not exist and neither is it available as a certified copy - as issued by the authorites saying that the alleged will is not registered on the date claimed as it is not there in their records to be in particular .????????????
A WILL is not required to be registered.So even if there is no registered will, but if there is a WILL from your grand father in favor of your father he SHALL BE TREATED AS ABSOLUTE OWNER OF THE PROPERTIES.
Even if your father got it by inheritance
from your grand father,since your grand father had self acquired the property,it came in hands of your father as his personal property and not as ancestral property.So just like your grand father,your father also enjoyed his absolute ownership right and could sale gift or will to any body of his choice without any interference from any of his 2 sons or you 2 daughters.
2. How and what about the status of the Will and Gift deed registered by my father in my brothers names. Are they valid by themselves inherently in such a situation .What is the legal remedy ?????????
Answer::::WILL or GIFT made by your father in favor of your brothers would treated as right and legal to the extent of share he inherited from his father[your grand father,my twist in language is so because it is yet to be decided by us on basis of facts what your father inherited complete unit or 1/4 or 1/5].
With regards to remedy i can simply say that you have right to sue and challenge both gift and will,whatever it is but not on the ground of incapacity of your father to execute them but on the ground that your two brothers played fraud upon your father
and got them executed under undue influence
by misrepresenting some fact that made him confused to understand these documents which he understood some thing else on account of his old age as his mental faculties were considerably low to read and the documents were not heard over him so that he could understand their true import.
But for ding all this some other circumstances would be required to be judged,such as age of your father on the date of document,his health problems at then,date of documents and date of his death,as well as knowledge date of your about these documents as all the would count a factor.
3. What is the quantum of my share if i want to seek my share in the property???
ANSWER:::
I have already addressed it which is dependent on some other facts asked by me,as your share seems quite variable from 1/4 to 1/16 or even 1/20.
4. From whom will i be getting the share ? Is it from my father or from my grandfather.????????
Answer:::
FROM YOUR FATHER,IF AT ALL YOU GET,ON BEING FOUND ENTITLED TO.
5. Total land is 10 guntas . What will be my share in terms of numerical value???????
ANSWER:::::
In case it has to be divided among 4or 5 brothers of your father including him,then
share of your father would fall to either 2,or 2.5 guntas, which when further divided in 4 share of you brothers and sisters then it come down to you only0.5 or0.625 guntas.
In case we consider your father got all 10
guntas, then each of you 4, in absence of a valid will or gift would get 2.5 guntas.
Querist :
Anonymous
(Querist) 18 September 2011
My sincere thanx a ton to all of the experts for thier valued information and support sir . I would be always grateful ever .
Sir my father including his brothers were 4 in number . 2 brothers ( EXPIRED ) were not married and the 3rd brother was married, wife ( EXPIRED ).He had a son ( EXPIRED )
Sir I have another issue of concern as the case for PARTITION is already in progress . An IA to admit the facts was filed by me asking them to admit as
Thanx a ton for all of the experts for your valued information sir . I would be always grateful ever . Sir my father including his brothers were 4 in number . 2 brothers ( EXPIRED ) were not married and the 3rd brother was married, wife ( EXPIRED ).He had a son ( EXPIRED )
Sir I have another issue of concern as the case for PARTITION is already in progress . An IA to admit the facts was filed was filed by me wherein the date of death of my grandfather and the year i.e when my father got entered his name in the RR ( Actually entered 1961 . Now my brothers have claimed a different date of acting on the registered will i.e stating as in the year 1965-1966 as exactly submitted by them in the main written statement .
a)Date /Year of death of my grandfather -13/12/1963.
b) Date /Year of getting entered his (my father )name in the RR 10/01/1961
c) Letter issued by Sub Registar Office - stating that there was no will registered by my grandfather in my father's name the date claimed by my brothers
Facts as submitted by them in their main written statement ( to my plaint ) are as under
1 ) Defendants have not submitted the date of death of my grandfather in the main written statement
2) My father got entered and acted upon the WILL in the year 1965-66 9 exactly as written by them )
3) Will deed (Original or certified in their possession not submitted - either during the proceedings of the case or during the IA submitted to admit the facts . For the said IA filed to admit the facts (a) , (b) and ( c) as i have stated above they remained silent and objections to IA was taken as not filed and the IA allowed may be added to the case and the plaintiff ( me ) can take the benefit of adverse inference . What does that mean if you could guide me in detail . Would be thankfull .
With regards
. Now my brothers have claimed a different date of acting on the registered will i.e stating as in the year 1965-1966 as exactly submitted by them in the main written statement .
b) Defendants have not submitted the date of death of my grandfather in the main written statement . For the said IA filed to admit the facts (a) , (b) and ( c) as i have stated above they remained silent and objections to IA was taken as not filed and the IA allowed may be added to the case and the plaintiff ( me ) can take the benefit of adverse inference . What does that mean:
1. IA allowed may be added to the case
2. Plaintiff ( me ) can take the benefit of adverse inference
If you could guide me in detail . Would be thankfull .
With regards
