Hi , I have a question with regards to the Daughters right towards an ancestral Property .
Note: Property is ancestral property .
My Grandfather has recently passed away and we are not sure if he has written any wills . My grandfather had 6 children[5 Daughters &: 1 Son]. My mother is the second born among them .
My grandmother is still alive so if i am not wrong she is as of now the rightful owner of property after my grandfather.
Everybody saying that the will has been written by my grandfather to his only son leaving nothing to the Daughters.
I wanted know if my mother or any of her sisters have right towards that property even if there is a will that was written. or is there any Law that safeguards daughters right towards ancestral property. Please let me know if we can file an injunction to it .
Thanks &: Regards
First note that in order to clarify your doubts with regard to nature of the property in question if it is Ancestral Hindu Family Property or Self Acquired Property of your Grand Father. When you say it was your Grand Father’s property that itself doesn’t mean it is Ancestral property. In order to qualify any property the test to be identified as Ancestral property it should be owned by the great grand father followed by grand father, father &: present generation all in this linear generation living &: enjoying the property. The property should not have ever partitioned &: share in it distributed to any of the Hindu Coparceners as in any linear generation as mentioned above in other words it should be intact single property which is being used jointly by all members of the Hindu Joint family. The Karta or the Manger of the Hindu family has no right to make any ‘Will’ with regard to the whole of the property however he can make ‘Will’ with regard to his share in the ancestral property or even use this property for the purpose of family benefits only &: not for his personal purpose. Any of the Coparcener of the Hindu Family seeks the partition of the property &: then the property has to be distributed amongst all the Coparcener &: the share in the property then becomes the self acquired property of the Coparcener. As far right of female members in the family only the daughters have been given the right to enjoy equal right as sons to demand &: get share in the Ancestral property as Hindu Coparcener, grand mother, mother wives etc have not been given this right even by the 2005 amendment in the Hindu Succession Act, 1956, or any State amendment in the said Act which was done in all the four southern States of India even before the Central amendment in the main Act. In the present case considering the legal position I have briefly discussed above, the nature of the property in question is not clear. If the property was owned by your grand father by virtue of his buying it through his own earning or he got it by inheritance from his parent &: at that time the present fourth generation was not in existence to identify this as the ancestral property in his hand, then this will be his self acquired property not ancestral property. In case he made a ‘Will’ with regard to this property in favor of his son as you presume then that son only becomes the owner of the entire property otherwise his wife/widow if alive &: all his children (5 daughters &: 1 son) get equal share in this property. The content &: validity of the ‘Will’ can always be challenged by any of the class 1 legal heir as named above at the time of the probation of the ‘Will’, if the objections to the ‘Will’ found correct the court will hold the ‘Will’ as invalid &: not issue letter of administration for the execution of the ‘Will’. At that time the entire class 1 heir gets their share in the property. In case this property is identified as Ancestral property then each &: every son, daughter etc will get share in the property, the ‘Will’ if made for this entire property by your grand father will not have any legal validity. So in order to go through the exercise of this whole process of partition of property etc first identify its true nature as I have discussed here. If it is identified as the self acquired property of your grandfather, which I personally presume then ask your mother to ask for her 1/7th share in the property immediately by way of partition. If the property is unable to be divided due to its smaller size (being residential) let it be sold &: equal share distributed amongst all the living class 1 heirs.
you have not mentioned whether your grand father was a hindu or a muslim. because in india, property distribution is dealt under various laws. However,presuming he was a Hindu,after the amendment of Hindu Succession Act in 2005, any property which has not been partitioned before 2005, the daughters get a share equivalent to that of the sons( as they now fall under class 1 heir).
Now,even if your grandfather had left a will,he could have only to the extent of his share in the ancestral property given it off exclusively to anyone(even an outsider).
the question here is how do we decide his share?? as per the law,we presume that a partioned had taken place before his death(even if it hadnt taken place,we only presume) and so every class 1 heir gets an equal share. class 1 heir include son,daughter,widow, mother,son of predeceased son,daughter of a pre deceased son,son of a pre deceased daughter,daughter of a pre deceased daughter,widow of a pre deceased son, son of a pre deceased son of a pre deceased son…..and so on.
so here,everyone gets 1/7th share each including your grandfather(as there are 7 people in total—6 children and the grandfather).we do not include your grandmother as she has a right only to the extent of the share of her husband(that is your grandfather)
Now, your grandfather could have only made a will in respect of his 1/7th share of the property and nothing more. So therefore, if he died intestate(that is without making a will or without settling his share of property before his death) the 1/7th share will be divided equally amongst the remaining 6 children and your grandmother in equal shares i.e. 1/49th share each. So in total your mother will receive 1/7th (being her original share) plus 1/49th share(being the share of your grandfather).
But if your grandfather has made a will, then he could have only done to the extent of his 1/7th share.
Either ways, your mother will get a minimum of 1/7th share in the ancestral property.
your mother can file a suit for partition of the ancestral property alongwith an application for injunction refraining the co-sharers from selling or alienating the property in any way unless partition is effected. Alternatively, you can file an injunction suit only. but it would only help you in refraining any co-sharer from disposing off the property.
I think the only bar JoeFink passed served alcohol. American probate law can’t be compared with a foreign country, they have totally different traditions.
In american law your grandfather can only give away in a will what is his. If he came into the marriage with the land then he can bequeath it to his son or whoever he see’s fit, if the land was acquired during the marriage it is community property and so belongs to both your grandparents and so it would go to her whether there is a will or not and whether he bequeathed to someone else or not, he only owned half of it and so can’t give away what is not his.
When grandma passes away, she will own it all because she survived the other owner and can will it away to one person, give it to a few or whatever she wants, if she dies intestate it is broken down equally to the heirs surviving.
I would doubt seriously that any of this would apply in India.
Your grandmother probably has the first rights to any property. If a will has stated that the only son is to inherit, that will be what will happen. There are no specific ancestral rights for either sons or daughters.
It’s possible. Depending on the state (if this is the USA), there may or may not be rules regarding cutting certain people out of the will. In many states you can’t cut your spouse out of the will and sometimes the same is true for children, though not as often. You’ll need to contact a probate attorney. The rules vary widely state to state and can be very complex.
The scenario you just asked could easily be a question on the New York Bar Exam (which I recently passed).
My grant father had a property and his only son was my father and we have no proof about transfer of property to my father:s name or will. Now my father before his death written a will of property in favour of his four sons including me. Whether the will is valid. He he can write a will for the ancesrial property. and whether the sons aplly pattas and enjoy the property
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Definitely if this property is Ancestral Hindu Family Property, you being daughter also one of the Coparcener as any son of the family can claim same share in the property as the any son. The 2005 amendment in the Hindu Succession Act, 1956 has giving equal right to daughters as the sons to claim share in the Ancestral Hindu Family property. The essential issue to decide whether the said property is Ancestral in nature or not is very important &: for that any property which has passed from three generation up to the present one who being the fourth generation to enjoy &: claim a right over such property. In other words it has to be seen that the said property you claim as ancestral property should be acquired by your great grand father &: passed it to your grand father, then to your father &: now to your generation. If this being the situation in your case, you being one of the Coparcener can seek share in the property by division of the property in question. Edit: – It hardly matters if your grand father made a ‘Will’ of this property, the real fact is that whether this property was acquired by your great grand father &: then it passed on to your grand father or was this property acquired by your grand father only. In the former case it will be considered the Hindu Ancestral Property &: in latter case it will be property that was owned by acquired by your grand father &: by inheritance on his death passed on to your father, in this case this property becomes self acquired property of your father by inheritance &: is not the Ancestral Hindu Property. In latter case your father can distribute or devolve his self acquired property as he wishes during his lifetime or by ‘Will’ after his lifetime. If your father dies intestate,i.e. without leaving any ‘Will’ then by law of inheritance as class 1 heir all his children along with his wife will get one share each of this property. In both cases you get a share in the property unless your father if has right over this property as his self acquired property doesnвЂ™t make a вЂWillвЂ™ as discussed above. Hope this point of difference between Ancestral &: Self Acquired Property is clear now in Indian Hindus! This Hindu Succession Act, 1956 &: Old Hindu law applies to you even if you are from A.P.
Its better if u seek advice from an advocate, refer http://www.advocatekhoj.com/