If the father passed away in 1999, which is before the Hindu Succession (Amendment) Act, 2005, do married daughters have a right over their father’s self-acquired property? Also, in this case the daughters were married off before 1986, when they were given a proper settlement with the plots of land and it was stated that they would have no share in the remaining property of the father earmarked for the sons. The father also wrote a will in which it was said that all his acquired property would go to his wife and sons only. But due to his illness he could not get the signatures of two witnesses. Also due to change of residence and his death only one photocopy of this will was found. Can this be used in any way?
—Name withheld on request
We understand that the father died in 1999 after executing a will, which was not attested by any witnesses, and that you only have a copy of it. In addition, an alleged ‘disposal’ of immovable properties took place before 1986. However, there does not appear to be a family arrangement based on mutual consent between the parties. This ‘settlement’ requires further assessment as it may affect claims that may be made with respect to the property of the father if the daughters are unmarried.
With respect to self-acquired property, a person has the absolute right to alienate, mortgage, gift, bequeath or transfer self-acquired property through a will. Accordingly, in the event of the deceased father being imperishable, irrespective of his marital status, his daughters are entitled to claim a share in such self-acquired property, in the capacity of being Class I legal heirs.
With regard to the status of the will, your query does not specify where the land plots are located or where the will was executed. This is important for determining the probate requirement of the will.
Also, the main concern here is the absence of certifying witnesses. Section 63(c) of the Indian Succession Act, 1925 specifically stipulates that the will must be attested by two witnesses. In the light of these circumstances, we would advise you to hire a lawyer at the earliest. From the facts you shared, it appears that the court will invalidate your father’s will, and that his property will pass under the testament. If so, all his assets will go equally to his Class I heirs, including your sisters.
Rishabh Shroff is partner, Cyril Amarchand Mangaldas.
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