Photo: iStock
Photo: iStock

If probate for will is granted, it’ll apply to all properties owned by deceased

  • If the ancestral house is treated as a self-acquired property of your mother’s father, he could bequeath the entire property
  • Once the probate for a Will is granted , by virtue of Section 273 of the Indian Succession Act, 1925, the probate shall have effect over all the property, moveable or immoveable, of the deceased

My mother is the oldest among four brothers and five sisters. My mother’s youngest brother passed away a few years ago leaving behind a Will, in which he has named another sister’s daughter (niece) as the beneficiary of a house. The house was settled in my mother’s brother’s name by his father. Does my mother have a share in the said property? Is it possible to Will a house that is not earned by him as it is an ancestral property? Even if the Will is probated, is it possible for the three surviving sisters to get a share?

—Rajesh

We have assumed that you follow the Hindu religion and are governed by Mitakshara law. In this context, if the property was inherited by your mother’s father, from his father or father’s father or father’s father’s father and the succession opened prior to 1956 (that is if the succession to this property from and to any of the ancestors as above, relates back prior to 1956), the property would be ancestral coparcenary property. 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]) and each coparcener would have a share in the property on birth. However, if 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 (HSA) (see Yuidhister Vs Ashok Kumar [(1987) 1 SCC 204]).

If the ancestral property is still HUF (Hindu Undivided Family) property (in view of the succession having opened prior to 1956), then your mother’s father could only bequeath his share in the HUF property. If the ancestral house is treated as a self-acquired property of your mother’s father (the succession having opened after 1956), he could bequeath the entire property.

Further, if your mother and her father were both alive on 9 September 2005, your mother can claim a share in the property as a coparcener (if the succession to the property opened prior to 1956) as per the Supreme Court judgment in the case of Prakash & Ors versus Phulavati & Ors. In other words, your mother (and her sisters if alive on 9 September 2005) would have been coparceners and could claim a share in the property if the property was inherited by your mother’s father, from his father or father’s father or father’s father’s father and the succession opened prior to 1956 (because of which it is an ancestral property) and further if your mother (and sisters if applicable) and her father, were both alive on 9 September 2005. However, if your mother and her father were both not alive on 9 September 2005, then your mother would not be a coparcener in respect of such ancestral property.

Once the probate for a Will is granted, by virtue of Section 273 of the Indian Succession Act, 1925, the probate shall have effect over all the property, moveable or immoveable, of the deceased, throughout the state in which the same is or are granted, and shall be conclusive. It may be possible to file an appeal before the appropriate court against the order granting probate.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries

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