• Question regarding appeal suit and consequence if respondent passes away, will

My Grandmother has a Son and Daugther. Son has created a document[Forged] saying she has agreed with him to sell the property[House] and that he has paid 10 Lakhs. He filed a case in the lower court, and the lower court has given a judgement against the plantiff[Son] stating that "He has not done anything in the court of law to prove that the document is right and signature verification wasn't done" and that "The Defendant need not pay him 10Lakhs back as it was used to send him to USA". He has now an appeal in the District Court. 

Owing to the age of my grandmother who is 77 Years now, What would be the procedure in the appeal court and tentative time it would take. What would be the situation in case the Respondent[ My Grandmother] Passes away amidst the case being taken up.

Please note, this is a forged document and my Grandmother has executed a Registered Will to her daughter that the house belongs to her. What is the status of execution of will?
Asked 7 years ago in Civil Law

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13 Answers

1) your grand mother should seek expedited hearing as she is 77 years old

2) appeal generally takes 10 years to be disposed of

3) will takes effect on demise of testator

4) better option is grand mother should execute gift deed in favour of daughter during her lifetime

5) gift deed should be stamped and registered

Ajay Sethi
Advocate, Mumbai
96803 Answers
7810 Consultations

1) daughter can apply for probate of her deceased mother will

2) her brother would oppose grant of probate

3) in such a case testamentary petition would be converted into suit

4)suit would take 10 years to be disposed of

5) on demise of grandmother the legal heirs have to be brought on record in the appeal filed by her son

Ajay Sethi
Advocate, Mumbai
96803 Answers
7810 Consultations

after the death of grandmother probate petition will be filed under succession act.

As of now , if the son appeals he would again have to prove the authenticity of the document he is relying on.And from your side you should always press that the document is forged and if you can prove that the document is forged he can also go to jail for act of forgery, and also tell the court that you have a registered will in your favour, and your grandmother can also file an affidavit in court as an evidence that she has made will in the name of her daughter.

Varnika Singh
Advocate, New Delhi
327 Answers
2 Consultations

1. Your grandmother should now file an application for early disposal of case due to her advanced age.

2. In case of her demise, her legal heir should file an application praying for substitution of his/her name as the Defendant within 90 days from the date of her demise. In the instant case, her daughter will substitute her since her son has filed the said appeal.

3. It will be prudent on the part of your grandmother to execute a will or register a gift deed in favour of anyone she feels like as otherwise her said son will automatically become shareholder of her said property being one of her legal heir.

Krishna Kishore Ganguly
Advocate, Kolkata
27453 Answers
726 Consultations

1. No. Her daughter shall have to file the substitution petition before the appellate court first.

2. If she wins in the appeal and thereafter she dies, her daughter can file the execution petition duly submitting her legal heir certificate.

Krishna Kishore Ganguly
Advocate, Kolkata
27453 Answers
726 Consultations

1. The appellate court has to see that the judgment rendered by the trial court is in consonance with the facts and evidence. Once the record of the trial court comes the case will be fixed for arguments.

2. Since the trial court has held that the plaintiff has not been able to prove the execution of agreement to sell the onus is on the appellant to prove that the judgment of trial court is perverse.

3. If the respondent dies then her legal heirs can come on record to contest the appeal.

4. The will continues to prevail despite the pendency of appeal.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

Hi, it is advisable the her daughter in whose favour the action WILL is made , attain a SPA from her due the age factor , and contest the case on her behalf .. She can also plead as a party to the suit as she is the orinigal holder of WILL .. When she becomes a party she can contest the case even after the death of grandmother

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

As on date, the will has precedence over any other document(s).

The Appeal in the District Court may take 2-3 years for its final conclusion.

In case the grandmother dies during the pendency of the appeal, she will be substituted by her heirs.

Vibhanshu Srivastava
Advocate, Lucknow
9659 Answers
307 Consultations

The daughter may file for probate of will soon after the demise of the grandmother, even in case is pending, then.

After the death of grandmother, the appeal will not abate and she will have to be substituted with her legal heirs, who have benefited out of all what that has transpired.

Vibhanshu Srivastava
Advocate, Lucknow
9659 Answers
307 Consultations

Owing to the age of my grandmother who is 77 Years now, What would be the procedure in the appeal court and tentative time it would take. What would be the situation in case the Respondent[ My Grandmother] Passes away amidst the case being taken up.

If you apprehend some danger owing to her age, you can safely obtain a power of attorney deed in your favor and attend the case on her behalf in the appellate court.

In case she happens to pass away during the pendency of the case, her Legal representatives may file a petition to implead themselves in the case on her behalf and conduct the case further .

Please note, this is a forged document and my Grandmother has executed a Registered Will to her daughter that the house belongs to her. What is the status of execution of will?

Please understand that the will whether registered or otherwise, it shall not confer any power or title to the beneficiary during the lifetime of the testator.

The will shall come into force only after the lifetime of the testator.

The testator can cancel or rewrite any other will during her lifetime and the previous will shall stand cancelled automatically once a new will has been written even without cancelling the previous will.

Thus the will is not a reliable document as on the current situation.

T Kalaiselvan
Advocate, Vellore
87004 Answers
2335 Consultations

A will has been executed by Grandmother prior to Son raising that an agreement which is forged has been filed in the Court of Law.

The will is not valid or enforceable during the lifetime of your grandmother, hence the subsequent sale agreement holds ground if it is genuine.

So, Can her daughter now file the will in the court of law for execution after her death? Will pendency of the case matter?

Since the sale agreement is reported to have been executed subsequently by the person who has marketable title to the property, the sale agreement if proved genuine, shall prevail over the will and the will shall become infructuous automatically.

The question involved is "Whether the death of respondent if happens due to old age affect the appeal if yes, how ?" & " Please throw some light on the Execution of will also in case of death".

The above answer suits this question too.

The Will stands cancelled automatically subsequent to any transaction taken place with the property under dispute after execution of the will, hence the sale agreement reported to have been entered by the testator with a third person will be a valid transaction therefore the Will cannot be enforced even if the testator dies during the pendency of the property dispute in the couret.

The sale agreement has to be proved as false or forged or fabricated and illegal in law to make it invalid after which the beneficiary can enforce the will to acquire the property made as bequest.

T Kalaiselvan
Advocate, Vellore
87004 Answers
2335 Consultations

Appeal might take years to get decided.

Since will, will come into effect after the death of the testator therefore you are advised that the grand mother shall execute gift deed in favor of the daughter during her life time

Anilesh Tewari
Advocate, New Delhi
18090 Answers
377 Consultations

A will has been executed by Grandmother prior to Son raising that an agreement which is forged has been filed in the Court of Law.

So, Can her daughter now file the will in the court of law for execution after her death? Will pendency of the case matter?

The question involved is "Whether the death of respondent if happens due to old age affect the appeal if yes, how ?" & " Please throw some light on the Execution of will also in case of death".

After the death the daughter will apply for probate to which the brother will oppose. Applying for probate is the procedure for execution of the will.

If a person passes away during the pendency of an appeal the her legal heirs will come into her shoes and fill fight the case.

Regards

Anilesh Tewari
Advocate, New Delhi
18090 Answers
377 Consultations

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