• Wills

Property of 1.62 acres in Kerala owned jointly in my parents name (father and mother). A Joint will was made by my parents to transfer property to my name after their death. The Joint will was signed by my father and mother and two witnesses. I am not sure if will was registered. I live overseas and have limited access to all documents

My mother expired in 2000. In 2009 my father prepared a partition deed and separated property into two parcels (Parcel A in my fathers name and Parcel B in mothers name). My father and brother signed the partition deed and I signed an addendum to it in 2011 because I was told that the Joint Will does not exist. Parcel B in mothers name was then subdivided into three equal pieces: (B1 for my father, B2 for my brother and B3 for me). 

In 2017 I found a copy of the old will signed by my mother and father before my mothers death.

With the existence of the joint will and my mother no longer alive; Is it possible/legal to prepare a partition deed, or for my father to prepare another will to superceed the Joint Will, or make another transaction against this property. 

Since my mother willed the property to me, do I have the right to my entire mothers share (Parcel B) after her death and sub divisisions (B1, B2, B3 not allowed)

Can I put a stay order on further transactions and appeal to the court to reverse the partition deed and to honor the Joint Will. 

Can I put a stay order on the execution of any new will that my father writes against this property.

Please advise my Legal Rights on this.
Asked 4 years ago in Property Law
Religion: Christian

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12 Answers

While making a joint will there are certain provisions laid down that a single spouse cannot revoke or alter any clause until and unless there is a mutual consent between the two spouses. A conventional will can be revoked at any point in time but a joint will cannot be revoked as it is a legally binding contract.

Therefore, a perusal of the joint will is required in order to render you suitable legal advise.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

In Narayani and Anr. v. Sreedharan[1], Kerala High Court held that:

“A joint Will is a single testamentary instrument constituting or containing the Will of two or more persons based on an agreement to make a conjoint Will. Two or more persons can make a joint Will, which if properly executed by each so far as his property is concerned is as much his Will. That will come into effect on his death.”

Further in Dr. K.S. Palanisami (Dead) vs Hindu community in general and citizens of Gobichettipalayam and others (Civil Appeal No. 5924 of 2005 decided on 9 March 2017)

The Supreme Court explained that a joint Will is a Will made by two or more testators contained in a single document, duly executed by each testator, disposing either their separate properties or their joint property. It is in effect two or more Wills, and operates on the death of each testator as his Will disposing of his own separate property. Further, a joint Will is usually carried out to ensure that the surviving party will not change his/her mind regarding what should happen to the property after the first party dies.

So in light of above SC and hc judgement answering your question :

You can file a suit for cancellation partition and can claim the share of mother disposed by will.

Further you can also seek interim.stay from court on disposal and transfer of property pending the suit.

Further yes your father cannot right will in respect to mothers property when the case is filed but can right on his share if he changes his mind.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes you may file a civil suit to execute the will even if it is not registered if the will is jointly signed by your parents it means that the father can change his own will but not the will of the mother and he cannot do the partition of the property rejected in the will. you have very strong reason to go ahead but you have to contest the case if will is not registered.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

In India, the law of limitation provided in the Limitation Act, 1963, prescribes a definite time period within which a suit can be instituted by a claimant in respect of various matters prescribed therein.

In the present case, since Mother has died after executing the Will, any suit in respect of the legacy or for a share of a residue bequeathed by a testator or for a distributive share of the property of an intestate against an executor or an administrator or some other person legally charged with the duty of distributing the estate has to be brought within a period of 12 years from the day the legacy or share becomes payable or deliverable, which in this case is the date on which Mother died. Hence, the period within which you could have instituted a claim in respect of the Will of mother has elapsed in 2012.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Firslty, there has been a presumption in the law which talks about the time when you got to know about the actual accuremce of the event, the limitation period starts from there only.

Secondly, and in your case you arre very right to have the sole owner of your mothers share.

Thirdly, it’s been a fault at their end to conceal the facts from you.

Fourthly, but, yes you would have to prove the sanctity of the will by sending it to the FSL for verification to know whether it is the genuine and your father brother cheated you on it.

Fifthly, fight would be longer, but chances are in your favour sir.

So, Good Luck...!

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. The joint will bequeathing the joint property to you lapsed when the character of joint property changed

2. That change happened when the property was divided into two and you became a signatory to the addendum to partition deed

3. Also when and how was Parcel B subdivided and were you a participant in that subdivision?

4. Originally your mother was having an 'undivided' share in joint property, that is, her specific portion in the joint property was not demarcated and identified

5. Moment the joint property came to be divided its character changed and bequest under the joint will lapsed, particularly when you yourself signed the addendum to partition

6. So now you cannot rely on the joint will and claim right in entire Parcel B as that was never owned by your mother

7. Any legal challenge preferred by you will not survive

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

as per mother will only on demise of both parents would property devolve on you

2) your father during his lifetime partitioned the property

3) since you have signed the partition deed for division of property it supersedes the will

4)you would not be entitled to entire property mother bequeathed to you

5) if existence of will was suppressed from you then file suit to set aside partition deed

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

1. First of all you shall have to lay your hand on the original will for staking your claim based on the said will as photocopy of a will shall not be accepted by any court as evidence.

2. Has the partition deed signed by your father and brother and later on by you also, registered? If not then it is required to be registered.

3. If you can find out the original will executed by your mother and father bequeathing their entire properties to you, then you can claim at lease your mother's said partitioned share to its entirety even if your father changes his part of the will.

4. If you can not lay your hand on the original will then your such claim will not be accepted by the Court.

5. If you can find the original will, then file an application for probate of it and also file an application praying for an order restraining the opposite parties to deal with the said property till the probate application filed by you is disposed off.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Hi, it is advisable to file a civil suit for declaration for claiming the share of your mothers property and in addition obtain a stay order on the later WILL that was executed by your father

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Q.With the existence of the joint will and my mother no longer alive; Is it possible/legal to prepare a partition deed, or for my father to prepare another will to superceed the Joint Will, or make another transaction against this property.

Ans. After the death of your mother, your father is owner of only half share of the property and he can make Will after the death of his wife only for the half share of the property. In case he make a Will for the entire property after the death of his wife, the Will can be challenged. Any transaction concealing the ownership of your mother is void ab nitio.

Q.Since my mother willed the property to me, do I have the right to my entire mothers share (Parcel B) after her death and sub divisisions (B1, B2, B3 not allowed)

Ans.: In case the property is willed to you by your mother, you have the right to entire share of your mother.

Q.Can I put a stay order on further transactions and appeal to the court to reverse the partition deed and to honor the Joint Will.

Ans.: Yes. But immediate action should be taken failing which further transactions cannot be stopped and it would be difficult to implead party to future transactors.

Q.Can I put a stay order on the execution of any new will that my father writes against this property.

Ans: Yes. Find an expert Civil Lawyer and go ahead. Good Luck.

Dalip Singh
Advocate, New Delhi
1040 Answers
36 Consultations

5.0 on 5.0

Partition deed not valid up to share of mother and after her death bequeathed share devolves in you.

Stay will be granted.

No, he can change his WILL as and when want in his life time.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

With the existence of the joint will and my mother no longer alive; Is it possible/legal to prepare a partition deed, or for my father to prepare another will to superceed the Joint Will, or make another transaction against this property.

A joint will is a single testamentary instrument constituting or containing the wills of two or more persons and jointly executed by them;

Any two persons are entitled to make a joint will however a joint will is valid only if it is made by two persons who are related to each other or have joint ownership or are joint beneficiaries of any trust. A joint will is perfectly valid under all personal laws.

“a joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in the property owned by them in common, or of their separate property treated as a common fund, to a third person of persons.” However, where it deals with a joint interest of the persons executing it, like a mutual will, if one person takes a benefit under it, he forfeits his right to revoke is part of the disposition by his conduct. A joint will is valid as regards the property of each testator and a probate may be granted on the death of the first and again on the death of survivor. Sometimes the joint will executed by members of the joint family may operate as a family arrangement and, therefore, are well. It becomes operative immediately after the death of any one of the testators so far as his properties are concerned and is not postponed till the death of all.

Therefore, the partition of the proeprty belonging to your mother shall be disbursed as per the will bequest and not by the desire of your father.

He cannot decide about the will in respect of the bequest made your mother in the joint will in respect of the separate property on her name.

You can very well seek probate of the will and seek declaration of title to the proeprty as per will executed by your mother.

You can seek temporatry injunction toward further alienation in respect of the property bequeathed to you in the will by your mother.

You cannot seek stay against the property belonging to your father.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

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