• Property transfer / will

Hello,
My grand parents left a registered Will for 4 children and it was clearly mentioned in the will that other children (8 children) do not have any right over this property. For second property there was no registered Will. But one of my uncle claims that he has document that it belongs to him. I verified the patta and the name is still in my grand mother name. Both the properties are in Pondicherry.
Now the whole issue is being dragged by this uncle who is also part of the Will and so after 3 years of my grand mother death no compromise is found. My mother is also mentioned in the Will and is one of the beneficiary.
I was thinking of getting a probate from Madras Hight court saying that the Will is valid since some of them questioned the validity of the Will. But I was told that it will take 10 to 12 years to obtain the probate and we need to pay lot of money.
All the land registration documents for both the property are with this uncle and we have only the registered copy of the Will. So I don't see how we can execute the Will/Testament without the property document.
So could you give your valuable suggestions on how to handle this case legally as we don't see any discussions taking place among them. 
 
Thank you.
 
Anand
Asked 2 years ago in Property Law from France
1. The name reflecting in patta or other relevant revenue record does not establish title.
2. The law of succession depends on the law of the land or on the terms of the Will, if there is an.
3. if you want to enforce your share as per terms of the Will then getting Probate of Will is only option. It indeeds take time and hence you need to show patience.
4. Another option is to make amicable settlement and be ready of get share which all of you mutually agree.This option is strongly recommended.
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
1. As regards the first property in respect of which the will has been made, it has devolved according to the will. The four children of your grand parents have become the absolute owners of the property in accordance with the will. The remaining 8 children have got no share in the property. You should apply for the probate of the will. Once probate is sought the court will issue a notice to the other legal heirs and they will be given an opportunity to file their reply. In the absence of probate the will may be challenged by the other legal heirs at any time. It does not take 10 years to get probate. You can expect to have it within 2-3 years in Madras High Court.

2. In respect of the second property, since no will has been made it has devolved equally on all the heirs of your grand parents. You have not mentioned whether your marriage is alive or not. If your mother is alive she can file a lawsuit for declaration of her title to the second property, whereupon your uncle, who has claimed to possess a document which makes him the owner of the property, will get an opportunity to produce the document in the court to rebut your mother's claim.

3. During your mother's lifetime you have no share in any of the properties.

4. It will be prudent for your mother to refrain from executing the will until and unless her ownership is recognized by the court.

5. The patta does not have any have any co-relation with the ownership to the property.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
Hi, you have to probate your will as per law and if any one challenge the will you have to appear before the Hon'ble Court and for the other property you have to fill a suit for partition for remaining land.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) probate is judicial proof that will is genuine

2) your grand father has by will bequeathed his one  property to his 4 children   and disinherited his other 8 children . the will does not contain any details of second property . please clarify whether will contains a residuary clause? 

3) in the event there is residuary clause second property would also devolve on legal heirs as per contents of said clause 

4) since no amicable settlement is possible apply for probate of will . notice will be issued to all legal heirs .in the vent any heirs desire to contest the will it would be converted into testamentary suit . it may take some years to be disposed of 

5) contact a local lawyer
Ajay Sethi
Advocate, Mumbai
23173 Answers
1217 Consultations
5.0 on 5.0
With regard to first property wherein your grandfather has left a Will, you should apply for probate. Once you file a probate petition , court will issue notice to all legal heirs. Now, if there is no objection , the probate will be granted within 1year. However, if there is an objection then it might take a little longer time and approximately 2-4 years. 
In case of your second property, if there is no Will, then the property will devolve upon all legal heir equally. Further, you can file suit for partition thereby demanding you share.
We suggest you to consult a local lawyer, who can advise you better after examining your documents
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
1. You can get certified copy of the property documents from the related registration office,

2. You should apply for probate of the said Will to get a seal of the Court as otherwise the said non probated will has not better value than a scrap paper,

3. Prbobate application can be disposed of within 2 years if followed up properly. Moreover, whether 2 years or 10 years, you shall have to get the will probated to make it operative,

4. You can file a partition suit claiming your share on the property for which no will has been executed by your grand parents.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1. Your uncle is contending that he has a document whereby and whereunder ownership of the property was transferred to him. So it is not clear whether he is telling the truth or not. Under such circumstances, it will not be wise for your mother to execute a will in respect of her 1/12th share therein as there is a question mark over her own rights in the property. Your mother can file a lawsuit for partition to cull out her share in the second property in respect of which your uncle is asserting that he has a document of ownership in his favour. After her share has been recognized and separated she can dispose it at her sweet will.

2. In respect of the first property the will made by your grand father will have no value unless and until it is probated. So she should file for probate. If the case is not decided during the life time of your mother then you can continue the case. Without probate the will would not come into effect. Probate case can be decided within 2-3 years or even earlier than this if handled in a deft manner.

3. Your mother can apply for a certified copy of the registered will from the office of local registrar. Probate can be sought jointly by all the 4 children of your grand father in whose favour the will has been executed. If any one of them has the original will he/she can produce it in the court.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1)the will appears to be badly drafted . residuary clause is generally incorporated in the will to deal with residue  of estate of the testator 

2) . apply for probate of the will so that the beneficiaries  can  be the legal owners of the first property 

3) if there is no will in respect of second property uncle cannot claim ownership  rights for said property. 

4) your mother can file suit for partition of said property . 

5) in the vent will is not contested you can obtain probate within period of 6 months in respect of first property . if it is contested it may take some years 

6) your mother can obtain certified copy of will from sub registrar office and apply for probate of will
Ajay Sethi
Advocate, Mumbai
23173 Answers
1217 Consultations
5.0 on 5.0
1. Since your mother as well uncle is getting old, it is all the more necessary to apply for the probate of the will at the earliest and complete the process quickly wherein your mother's presence/witness etc is required,

2. After her eventual demise, her legal heirs can step in to her shoes in the said probate case,

3. How are your aprehending that your uncle had already transfered the property to his name? With out valid legal document i.e. grant of probate, registered sale deed, gift deed, settlement deed etc, no body can transfer any property in his name,

4.  You can make a search at the egistration office to find out if there is  any such deed of conveyance registered in favour of your Uncle. If not, then there is no such conveyance deed in his favour,

5. Even if he has a written will in his favour for the second property, he needs to take probate for it to get it transferred in his name,

6. File a partition suit for the second property wherein all these matters will be cleared.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Property Lawyers

T Kalaiselvan
Advocate, Vellore
13969 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23173 Answers
1217 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
434 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2735 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0