My father acquired a freehold plot and constructed a three-storey building on it. He passed away without a will. He is survived by his wife, a daughter who is married and two sons, including me. My siblings and I have surrendered our rights to the property in the favour of our mother. The property is registered in our mother’s name and accordingly the mutation is done. My mother has made a registered will. As per the will, the property is to be distributed among her children. Recently my family has disowned my son and his wife. In the present circumstances, does my son or his legal heirs have any right over this property as he may claim it as ancestral property being self-acquired by his grandfather? I have been told that since the property is already mutated in my mother’s name, he has no rights over it.
-Akshay Mohan Kapoor
The property acquired by your father and the building constructed would be considered as ancestral property. Being a coparcener, your son would have been entitled to a share in this property (your father’s). If your son was a major at the time of relinquishment, you and your siblings could not have relinquished the entire property (including your son’s share) in favour of your mother without the son’s consent. Your son would thus have a claim in the property to the extent of his share in the property that had been relinquished by you and your siblings; your son can challenge the relinquishment and also the mutation in favour of your mother. This position will not be affected by the subsequent act of disowning him and his wife. In other words, even after being disowned, your son can claim his share.
In case of immovable property (in Mumbai) bequeathed by a testator, will it be necessary to obtain probate of a will?
As per the provisions of section 213 of the Indian Succession Act, 1925, a probate for a will is required to be obtained. The said section inter alia requires that “no right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed”. Further, as per the Act, the above-mentioned provision is applicable to any Hindu, Buddhist, Sikh or Jain inter alia where such wills are made in Mumbai and if made outside of Mumbai, where such wills relate to immovable property situated in Mumbai within those limits.
Since the immovable property in question is located in Mumbai, it would be necessary to obtain a probate in respect of the will to enable the executor and the legatee to be able to deal with the same.
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