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Division of self acquired and ancestral property

Shivendra Pratap Singh

Advocate

09/06/2021/ 2:51:47 PM

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What is the procedure for division of self acquired and ancestral property among siblings? My father died two years ago. He purchased ten acres of agricultural land out of his own income and he had ten acres of ancestral land. We are two brothers and one sister. My sister is living in the USA. She does not want to share in our property because she is a citizen of the USA. There is a house in my father’s name. My mother wants to transfer everything in the name of my younger brother. We three siblings have equal share in the property so I think my mother cannot transfer everything to my younger brother only. 

Question from: Delhi

Nature of ancestral property is very unique. Only coparceners have interest in the ancestral property no other person such as mother can claim therein. Mother does not become owner of the ancestral property after the death of her husband. But children of the deceased father become the owner of the ancestral property. Your sister, younger brother and you are the owner of that ancestral property. 

Also read: Daughter’s right in ancestral property

Ten acres of land and a house are self acquired property of your father. His wife and children are entitled to get share in that property. Your mother has one fourth share in the house and same share in ten acres of land. She can give two and half acres of land and ¼ area of house to her younger son through a gift or testamentary will. If all the legal heirs agree to settle the property amicably then prepare a registered settlement deed. Get it registered and mutate your name in the land records.

File a civil suit for division of ancestral and self acquired property 

If there is no chance that they will be ready for a the amicable settlement then you should file a civil suit for the partition of property. Try to keep only one legal heir as a plaintiff and make the rest of them as defendants. Because if there is only one plaintiff then he will pay less court fees. Your sister is necessary party but she does not want share in the property so you can frame her as a proforma defendant.

Also read: Gift of ancestral property

Get relinquishment deed from your sister

Your sister does not want her share in property. So you should take a relinquishment deed from her. She can prepare a relinquishment deed and register it in the Indian Consulate of USA. The relinquishment deed that she is relinquishing or giving up interest in the ancestral and self acquired property of her father. That deed will be admissible in evidence. You should produce that relinquishment deed along with the plaint. Thereafter the court will not ask to make her a party in the suit. Thus you can divide the ancestral and self acquired property among the siblings and your mother.

Also read: Mother’s possession over ancestral property does not confer any right

File a suit for cancellation of gift deed or Will

Move a civil suit for cancellation of deed if your mother has prepared any gift deed or a testamentary will in favour of your younger brother. Your mother has no right to alienate all the property to her younger son. Therefore, if she has prepared any deed or will it will be void. So, you should take steps to nullify that deed or will in the lifetime of your mother.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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