Partition

Prakash (Querist) 27 July 2023 This query is : Resolved
An ancestral property has been given to only 2 children through will. Can it be partitioned now among all children and wife ? The donor of the will is no more now but one of the beneficiaries of the will is willing for partition among all.

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This discussion clarifies the partition of ancestral property. If the property is truly ancestral (undivided for four generations), a will cannot exclude other legal claimants. In such cases, other heirs can file a partition suit to claim their rightful share, even if the testator is deceased. However, if the property was not ancestral, the will stands, and the beneficiaries can only gift portions to others voluntarily.

kavksatyanarayana (Expert) 27 July 2023
Through the will that two children only have rights. So it cannot be partitioned as the others have no existing right over the property. So if the two children want to give something to others, they can gift to others what they want to give through the gift deed.

T. Kalaiselvan, Advocate (Expert) 28 July 2023
If this was ancestral property then the testator do not have any rights to bequeath the property to only two chosen beneficiaries.
Ancestral Property Meaning
It is an undivided property from four generations which is inherited. If a property is inherited by any other relations then it is not considered as an ancestral property. A property inherited from the maternal side is not considered as ancestral property.
Hence you confirm if that is ancestral property so that you can take legal action for partition, if it is not then there is no point in filing a suit for partition

Advocate Bhartesh goyal (Expert) 28 July 2023
Yes, Ancestral property had to be divided among all the legal claimants and testator had no right to bequeathed the whole ancestral property through will to only two sons.Other claimants can file partition suit for their claim irrespective of the fact that testator is no more.

Dr. J C Vashista (Expert) 28 July 2023
Well analysed, opined and advised by experts, I agree.
The share of testator in ancestral property can ONLY be bequeathed.

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