Bequest in favour of unborn child is also void if the child was not born at the time of the death of the testator
Assuming that you are the sole living heir of your father and your sister passed away without heirs, the ancestral house will be transmitted to you by way of succession
My father wrote a Will in 2014 where he has stated that the ancestral house will belong to my unborn child. I only married last year, and my father passed away recently. I had an unmarried sister who passed away in 2015. Can I directly take control of the property and sell it? What happens in case we don’t have a child?
We have assumed that you follow the Hindu religion and are governed by Mitakshara law. In this context, if the ancestral property was inherited by your father from his father, grandfather or great grandfather and the succession opened prior to 1956, the property would be ancestral coparcenary property and you have a right in the property as a coparcener (as would other coparceners of the Hindu Undivided Family or HUF). Hence, the person inheriting such coparcenary property cannot alienate this property (see: Surendra Kumar versus Dhani Ram & Ors. [AIR 2016 Delhi 120] and Arshnoor Singh versus Harpal Kaur and Ors. [Civil Appeal No. 5124 of 2019]). However, if a person inherits a property from his paternal ancestors and the succession to such property has opened after 1956, the said property becomes self-acquired in his hands and does not remain coparcenary property in view of Section 8 of the Hindu Succession Act, 1956 (see: Yuidhister versus Ashok Kumar [(1987) 1 SCC 204]). If the ancestral property is still an HUF property (in view of the succession having opened prior to 1956), then your father could only bequeath his share in the HUF property. If the ancestral house is treated as self-acquired property of your father, he could bequeath the entire property.
However, I note from your query that the bequest by your father has been made to your “unborn child". A bequest to an unborn child can take effect only if a prior interest for life has been created in favour of a living person, which we understand is not the case as per the facts disclosed by you. Sections 113 and 114 of the Indian Succession Act, 1925 read with Sections 13 and 14 of the Transfer of Property Act, 1882 lays down that in order to transmit a property for the benefit of a person unborn, it is imperative that the property must first be transmitted to a person living on the date of the death of the testator (your father). Therefore, the bequest in favour of your unborn child is void if the child was not born at the time of the death of your father and there is no intervening life interest created in favour of any other person.
You have stated that your sister passed away in 2015. Assuming that you are the sole living heir of your father and your sister passed away without heirs and further assuming that the property is not HUF property, the ancestral house will be transmitted to you by way of succession and on the basis that the bequest to the unborn child is void, you may dispose of such property as you deem fit.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and views at firstname.lastname@example.org