The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the following Q&A which was published by the Mint Newspaper on 7th October, 2020 and the online edition of the same can be found here.
We are two sisters and our father inherited a residential property from his mother through a will. He willed the whole property to my elder sister under pressure. Can my father give the property to one of the two legal heirs, leaving nothing for the other?
We assume that all of you are of Hindu faith, hence the Indian Succession Act, 1925 would apply. First, even though the property was acquired by your father (we assume the probate was completed), it would be treated as his absolute or personal property. Hence, the bequest made by him to your sister and excluding you would be valid. The only condition required to be met is that the will should be validly executed.
Your query does not mention if your father is alive or not, but we assume he is. Therefore, even though he has made the will in this way, nothing happens till he passes away, and then until probate (if applicable) is completed to transfer the title to the legatee(s). You still have time to settle this issue.
Probate is compulsory if the will is executed within the jurisdictions of the high courts of Mumbai, Chennai and Kolkata or if it deals with properties located in such jurisdictions.
Once your father passes away and if the will needs to be probated, you may contest the will at that stage if you believe there are sufficient grounds to do so.
You should speak to your attorney, who may guide you on grounds of challenge such as alleged undue influence. If you win, his assets and property will go equally to both of you as his Class 1 heirs. However, this is very difficult to do and is rarely successful. Contesting a probate may stall the grant of the probate substantially, and would prevent your sister from acquiring the title rights to the said property in question. It can give you leverage to arrive at a settlement with your sister for your fair share of the property. This suggestion should be considered as the last resort.
If your father is still alive, we recommend that you consult with him and have the will amended to provide for your share in the property as well. Alternatively, the three of you may also get into a settlement agreement.
My father had inherited land from his adopted mother, which he has bequeathed to his sons and not daughters. Do I have equal right as a daughter?
—Name withheld on request
Properties inherited from a mother, biological or legally adopted, are not considered ancestral property. Any property inherited up to four generations of paternal ancestors is called ancestral property.
Assuming that your father retained the property in his name, and did not attach the property into a common pool of assets owned by his Hindu Undivided Family, the land is in the nature of a “self-acquired” property for your father. In your case, the land inherited by your father is self-acquired. Hence, you do not have any rights on the property per se.
Assuming that your father is still alive, it would be at the discretion of your father on what he may choose to do, either during or after his lifetime. If your father passes on the property under his will, he will have the right to include or exclude any family member. He may even split the interest among his sons and daughters if he chooses to do so.
However, assuming all of you are Hindu, as a daughter your right to claim a share in your father’s self-acquired property would arise if your father were to die intestate (without making a valid will). You would then qualify as a Class 1 legal heir, and receive an equal share along with other heirs. To reiterate, this only applies in case your father does not make a will.