Next step on a disputed property
Hi....my grandfather had a property in Delhi that he transferred to his 5 sons after his death via his registered will. He also had 3 daughters and as per his will, the daughters don't have any share in the property. Recently, one of his daughters has filed a partition of property case against her brothers claiming her one-eighth share. The basis of her case is that the will doesn't exist and that everyone should get an equal share.
If my father wants to eventually get his one-fifth share of the property (per the will, the property should be divided amongst 5 sons), what should be the right next step to move forward, considering the partition of property case has already been filed by his sister?
Asked 3 years ago in Property Law from United States
1) apply for probate of will . both the partition suit and probate petition would be clubbed together
2) you need judicial proof that will is genuine
3) only after probate is granted should your father bequeath his share in property by will or execute gift deed
1) The first step is to get the will probated. This will pave way for the execution of the division of of property as per the registered will.
2) Since your aunt has already challenged the Will and filed for partition, both of these, the probate of the Will and the partition suit will be adjudicated together by the court as they are related matters.
3)You need to prove the genuineness of the will by producing appropriate evidence.Once the probate is granted by the court the will will come into effect and the partition suit in the result will be dismissed.
4) Engage a lawyer locally and get the Will probated as soon as possible.
1. First of all file an application for granting probate for the said Will,
2. All the legal heirs will get notice from the Court informing about the said application for probate based on which your said Aunt can file an objection challenging the said Will,
3. Contest the partituion suit arguing that the prabate application if pending before the Court,
4. The partition suit will be rejected on your farher's getting the decree of divorce.
Ajay, S J and Krishna,
Thank you for your replies. So lets say we file a case to get the will probated and as a result, the will gets probated. What proceeding should happen after that in order to get the one-fifth piece of land fully registered (with proper registry and exact land dimensions) in my father's name? Will we have to file another case to accomplish this end goal?
Asked 3 years ago
1) apply for mutation of property in name of 5 legal heirs based on probate granted by court .
2) as far as division of land equally among 5 legal heirs by mete and bounds is concerned deed of family settlement can be entered into .
3) deed of family settlement has to be stamped and registered .
4) you wont have to file any further partition suit if amicable settlement is possible amount the 5 legal heirs
As far as the property was self acquired property of your grandfather,the Will would be bound to his 5 sons,and if the subject property was ancestral property, one of his daughters filed a partition of property case against her brothers claiming her one-eighth share would be maintainable.
1. No. The moment your father gets the grant of probate for the said Will, he gets legal seal for it and his right title nd interest on 1/5th of the willed property becomes absolute,
2. After this your father can mutate hisr name as 1/5th share holder of the said property,
3. He can thenceforth enjoy the said property with his other 4 brothers jontly or get the property partitioned by executing and registering a partition deed,
4. If other brothers refuse to partition the said property, your father can file a partition suit against them,
5. In any case, your Aunties will have no claim on the said property.
1. Has the case of the daughter (your aunt) been specifically founded on the allegation that the will of your deceased grand father is the result of fraud? Was the will probated after the demise of your grand father?
2. If the will has not been probated yet then your father should apply for the probate of the will. Your aunt must also have sought a stay order on the sale of the property which she has claimed, which may be granted by the court on any of the subsequent hearings.
3. After the probate petition is filed your aunts will be given an opportunity to enter their objections which will be decided on merits by the court.
4. If you have received the court notice then first file your reply to the case filed by her.
1. After the probate of the will your father and his 4 brothers will be free to deal with their respective shares in the manner they desire. They may sell, gift or mortgage the property to the extent of their share.
2. Your aunts will have no claim in the property after the probate is finalized.
3. In the event that your father, subsequent to the grant of probate, wishes to sell his share in the property, and faces resistance from any or all of his 4 brothers, he may cull out his share by filing a suit for partition in the court.
4. As suggested earlier, file your reply to the suit for partition filed by your aunt.
Although the probate of will is not necessary in Delhi to claim a right in the property on the basis of will and this issue regarding existence and genuineness of the will can be raised in the partition suit. Yet it would be better if will is probated in a separate suit. An application can be made to club both the suits.
Advocate, New Delhi