• Self-acquired property

My father who  had registered will in baroda, Gujarat for self acquired
property (Farming land and a house 90 % only 10 % from his brother with partition deed).My father has two sons and three daughters.He stated on will that he has given everything to his daughters their share to his wish and whatever left that is farming land and a house giving to my two sons. Now daughters had filed case with mamlatdar 
and prepared pedhinama and claimed they are also heirs of their late father and managed to enter their names in satbar through cuuruption with deputy collector. Now we have filed appeal to collector to reverse this deputy collector order. Deputy collector said there is no probate.Do we
need probate? I understand in state of gujarat probate is not required. We both brothers are NRI
age in 70 and it is very difficult to fight as time factor in such legal matter is too long  .Some 
Lawyers advice settlement is only quick solution. Do you have any advice or process to fight
legally this kind of case and resolve faster.It took 4 years already to this point.

are NRI our age is 70.and it is very difficult to  fight  as time factor in such legal matter is too long
Asked 3 years ago in Property Law from United States
1) since daughters have claimed share in property as legal heirs you have to apply for probate to prove that will is genuine and represents last will and testament of your father . 

2) your father must have appointed executor of will . he has to apply for probate . 

3) i presume that alteast one of attesting witnesses is alive . 

4) affidavit of Attesting witness should be enclosed to probate petition to prove the will . 

5) if probate  petition  is not contested  you can get probate in 6 months . 

6) in the event daughter contest the will petition would be converted into testamentary suit . 

7) it would take  some years for testamentary suit to be disposed of

8) amicable settlement is best option
Ajay Sethi
Advocate, Mumbai
44214 Answers
2563 Consultations

5.0 on 5.0

1. Though Probate is always advisable to obtain, in your case it may not be required.
2. In this case if all the sons and daughters are satisfied with the shares granted to them through the Will then they can execute and register an amicable deed partition.
3. If is not possible then a lengthy suit for partition would be the possible option left.
Devajyoti Barman
Advocate, Kolkata
12502 Answers
160 Consultations

5.0 on 5.0

 in the present circumstances it is better to apply for probate , once the probate is ordered as per the WILL, the claims of the daughters can be dismissed.
if you are not able to get a probate in your favour then the best option is to go for a settlement.
Normal course probate will need 6 to 8 months time.
Though it is a registered WILL for probate you need to produce the witness who signed in the WILL. Their affidavit and deposition in the court is important to prove the WILL in your favour.
Thresiamma G. Mathew
Advocate, Mumbai
1510 Answers
134 Consultations

5.0 on 5.0

1. Probate is not mandatory in the state of Gujarat. However, the case filed by the daughters underscores the importance of probate regardless of whether it is mandatory in the concerned state or not.

2. In view of the fact that the daughters have, despite the will made by their father, sought a share in his property, it is imperative that the two sons should file a lawsuit for being declared as the owners of the property, or in the alternative seek probate. The daughters will be given an opportunity to contest the case as and when the brothers file it. 

3. Amicable settlement is indubitably the best option, but if it cannot be reached then filing the suit will be the only option.
Ashish Davessar
Advocate, Jaipur
22966 Answers
631 Consultations

5.0 on 5.0

1) As the daughters have taken steps and have raised issues about heirship, it is advisable to get the probate done which will for once and all settle the issue of right paving way for the daughters' claim to be struck down..It should not take more than a year for disposal of the probate of the Will

2)You will need to produce at least one of the attesting witnesses to the Will to depose to establish the genuineness of the Will before the court.

3) As you are advancing in age and not able to travel always, you can appoint a POA to act on your behalf in the matters in the court.You need be present only if the your presence is unavoidable and that would be at the time of evidence.

4) An out of court settlement is the best solution in terms of the time factor as such matters pertaining to property  will take years to dispose of  and this would in a grave manner damage your cause.
S J Mathew
Advocate, Mumbai
2229 Answers
110 Consultations

5.0 on 5.0

1. You need to get the will probated since without probate will has no value more than a scrap paper, 

2. Your sisters will get notice about your said application for probate which if the chose to contest will be converted to a testamentary suit to be fought by all the siblings,

3. Once probate is granted by the Court, you can apply for deletion of your sisters name from the record of land right.
Krishna Kishore Ganguly
Advocate, Kolkata
18112 Answers
438 Consultations

5.0 on 5.0

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