• Unregistered will with 1 witness - Registration of property

This is regarding a property, we had an old house which we got reconstructed through a builder. Before the reconstruction, the property/land was on the name of my brother. He had a WILL in place which stated that property belongs to both the brothers i.e. me and my brother. Post reconstruction, we had in total 3 floors with us and all three on the name of my brother. 1 of them sold off. Now unfortunately my brother passed away and according to his will 1st floor belongs to me and ground floor belongs to his wife post his death. Now the problem is that the will is nor registered and neither signed by 2 witnesses. Please anyone help explaining how can i get the floor registered on my name?
Asked 8 years ago in Property Law
Religion: Hindu

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5 Answers

1) will is not valid

2) it is necessary that will should be signed by testator and attested by 2 witnesses

3) your brother has died intestate .

4) on his demise house would devolve on your mother , brothers wife, children

5) your sister in law and other legal heirs can execute gift deed in your favour to transfer first floor in your name

Ajay Sethi
Advocate, Mumbai
100092 Answers
8174 Consultations

registration of will is optional

2) if you are able to arrange the original will and seek registration of first floor in your name it would not be done as will is attested by only one witness

3) you can take search in records in sub regsitrar office as to how ground floor was regsitered in sister in law name

Ajay Sethi
Advocate, Mumbai
100092 Answers
8174 Consultations

Now unfortunately my brother passed away and according to his will 1st floor belongs to me and ground floor belongs to his wife post his death. Now the problem is that the will is nor registered and neither signed by 2 witnesses. Please anyone help explaining how can i get the floor registered on my name?

Since the will is not witnessed it loses its validity.

A Will or a testamentary disposition shall be valid and effective only it is signed by the testator and attested by witnesses.

However if your sister in law is agreeing for partitioning the property as per will, you can make a family arrangement to partition the property as desired by your brother in the will and get it registered.

Thus you will be conferred with the title to the share of property now registered on your name.

T Kalaiselvan
Advocate, Vellore
90295 Answers
2513 Consultations

Please enlighten on the point that can both the floors would devolve on the brothers wife automatically?

Since it is intestate property, the legal heirs of your brother shall be entitled to the entire property that is remaining on his name.

However instead of going round about way, you can discuss with your sister in law and getting some elders of the family involved in this meeting you may arrange for a family settlement and accordingly draw a deed apportioning your share in the property, get the deed registered, take possession of the property, transfer all records of the property allotted to you to your name.

Could you please suggest me other possible ways considering the below points

1) If I am able to arrange the original will

2) If I am not able to arrange the original will

If the will is not signed by a witness, then getting a original will is also of no use.

To enforce the will it has to be probated since the other heirs would not be willing to give NOC.

In my opinion, if nothing works out, you may file a partition suit on the basis of the original status of the property and seek your share in it, let them defend themselves with whatever they would try to defend.

T Kalaiselvan
Advocate, Vellore
90295 Answers
2513 Consultations

1. The registration of a will is not mandatory, but the attestation by attesting witnesses is. Since the will of your brother is not attested it has no legal force and validity, as a corollary thereto it can be said that he died intestate. So on his demise his property has devolved through succession on his widow and children.

2. You are not a legal heir to your brother,

Ashish Davessar
Advocate, Jaipur
30843 Answers
982 Consultations

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