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Suganthi Subaramaniam (Farmer)     21 February 2022

Ask - will valid in ancestral property

Respected Sirs,

We are three daughters in Hindu family in Tamilnadu .  I am younger sister and i filled partition case against our ancestral property in lower court. The lower court  has given judgment each  daughter has 1/4  equal share, and one share my father also ( total 4 share). Now my father is staying my first elder sister's house and she also filled appeal in higher court. She needs more share for carrying my father in her house.  My father also made a register  WILL  of his 1/4 share to my first elder sister named. But case is still pending in higher court.  

 

My Query:

1). May i know this WILL is valid when in the  case pending time registered.

2). Can i claim share from my father's 1/4 ancestral property share.

 

Kindly your advice me Sir,

 

Thank you

Sugandhi



Learning

 11 Replies

Kishor Mehta (CEO)     21 February 2022

1) Yes, he can prepare a WILL of his legal share in the property.

2) No, you can not demand any share in your father's property if he does not want to give it to you.

G Krishna Rao (Advocate)     21 February 2022

You hve to mention clearly about the case.  Your father can make a Will against his shrea only but not on the entire property.  you will get your share in the ancestal property.

H.JanakiManohar Rao (lawyer)     21 February 2022

Your fathers will is 100 percent valid.You cannot claim any share from your father's share.

G.L.N. Prasad (Retired employee.)     22 February 2022

There was already a Lower court judgment, and the presumption is the court might have considered the property as ancestral and not divided in metes and bounds before 2005.  Once there is a judgment and judgment is not being disputed by you, your father can relinquish/gift/will of his 1/4 share in property as he got it in his own name as per judgment and it is treated as his individual property.  Generally, the will is valid only after his death and the validity of a will can not be disputed unless there is a fraud.  Now that your father is very much living you can not question his right to bequeath his individual property through a will.  You may claim anything, but your claim is not legally valid as your father has executed a will and is not willing to give his share of the property to you.  The presumption is that you might have already discussed with your advocate and sought a second opinion doubting his knowledge.

Shruti   22 February 2022

G.L.N. Prasad sir, As the original querist has filed partition suit for father's ancestral property, can one fle a partition suit for mother's ancestral property as well?

Mayur Shrestha   22 February 2022

Dear querist, 

1. the will is perfectly valid as it is an ancestral property the same can be distributed equally among the Class -1 heirs of the Hindu Undivided family. 

2. under an amendment made under the Hindu Succession Act in the year 2005 which sought for providing equal rights to the daughters in the father’s property as that of the son, earlier only unmarried daughters had the right to obtain the property of their father after their death but after the amendment into the succession act a daughter whether married or not, has been given a right of inheritance in her father’s property.

3. The concerned Amendment states that the daughter born on, before, or after 2005 shall have the same rights in the father’s ancestral property as well as the Self-Acquired as that of the son. Also, The Hindu Succession Act groups the female heirs under Class I of the Schedule, and all the heirs mentioned under this schedule inherit the property of their father. 

4. But in case of father's share until he is living you cannot force him to transfer the same to you unless he wishes to, the same will be divided after his death equally among all his heirs.

 

Hope it helps. 

 

Suganthi Subaramaniam (Farmer)     24 February 2022

Dear Experts Ms. Mayur Shretha,

Thank you for your reply regarding my querry.  Your reply in paragraph 4 mentioned that  i can clami my fahter's 1/4 share afer his death.  

 

"4. But in case of father's share until he is living you cannot force him to transfer the same to you unless he wishes to, the same will be divided after his death equally among all his heirs."
 

 

1). Hence, My fahter has registred  a WILL in his 1/4 shre to my elder sister named that is invalid after my fatehr death.

2). If Appeal case is pending in the Higehr Court but my father registed a WILL  this situation,    can I make  objection in Higher Court against WILL.

Please Advise me Dear Experts.

 

 

in Appeal is pending in higher court.  Please advicse me.

 

G.L.N. Prasad (Retired employee.)     24 February 2022

Your advocate is most competent to guide you on the issue.  There is no bar in transfers on a litigation property if there is no injunction/status quo by a competent court.  Finally, such transfers are subject to the final verdict of the court.

Rashmi Pavan (Lawyer)     26 February 2022

1) he can execute Will only his share to

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     26 February 2022

From whom was the property originally inherited? Was it from the grandfather of the women? If so can the women claim partition during the survival of their father?

Adv.Asgher Mahdi (Advocate)     28 February 2022

father of his share acquired in an hindu ancestral property can Will/Gift/ sell/ alienate by whatsoever means. in your instant case the matter in question is pending during such time the beneficiary interest need to safeguard from lis pendent principal.

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