• Intestate death of an unmarried Hindu woman

My father had five children - two brothers and three sisters. He had bequeathed his self earned plot admeasuring 12,000 sqft upon his unmarried daughter (my youngest sister) through a Will made in 1994, specifically mentioning that after the death of his unmarried daughter, the property shall pass on to his two sons (i.e. me and my younger brother) or their children. The Will bears signature of vaild witnesses but is not registered. 

However, my sister has passed away without making a will. Now whether the property should come to me and my brother as mentioned in my father's Will or it will be divided among all the siblings of the deceased unmarried woman (i.e. all the remaining brothers and sisters) as provided in the case of intestate death.
Asked 4 years ago in Property Law
Religion: Hindu

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17 Answers

hello,

your father bequeathed the plot to your sister and specifically stated that after her death the property shall pass on to his 2 sons.

your sister cannot have made the will as the will made by your father was a conditional will and after her death, the property will pass on to the two brothers mentioned in your father's will.

therefore, the property will pass on to the two brothers mentioned in your father's will.

regards

Rahul Mishra
Advocate, Lucknow
13754 Answers
65 Consultations

5.0 on 5.0

hello,

A will is drawn up to distribute the assets of a deceased testator, according to their wishes. However, sometimes a probate might be necessary to prove that the will is genuine, otherwise, the administrator or executor appointed under the will may not be able to administer its provisions. A probate is granted by the High Court with the court seal and a copy of the will attached. Here’s how to obtain a probate. The application for a probate has to be made to the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through a lawyer.

The court usually asks the petitioner to establish the proof of death of the testator, as well as proof that the will has been validly executed by the testator, and that it is the last will and testament of the deceased.

After receiving the petition for a probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate. It also directs the publication of a citation on board to notify the general public. The court may demand a percentage of the assets as a fee to issue a probate. This, however, is also subject to a ceiling. In addition to the court fee, the lawyer’s fee also needs to be taken into account.

Under the Indian Succession Act, a probate can be granted only to the executor appointed under the will.

A probate is essential if the will is for immovable assets in multiple states. The necessary procedure should be completed before applying for the transfer of ownership of the assets.

regards

Rahul Mishra
Advocate, Lucknow
13754 Answers
65 Consultations

5.0 on 5.0

This is my response to you:

1. Engage services of a local advocate, obtain the legal heir certificate/succession certificate;

2. Take this Will which proves that you are the owners;

3. Take it to the Registrar, make the mutation entry in the property records.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1) If you produce WILL in the front of registrar than you will get transfer on your and your brother's name.

2) Regarding Succession Certificate you have to apply in the court.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

See since the life interest was only given to the sister through will after that the property comes to you in that case the property shall come to only two brothers not all the siblings.

See if the will is properly signed by witness though it is not registered it will be valid.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You donot need to obtain a succession certificate in this case you can present the will before the sub registrar for the mutation the property shall be mutated in your name.

In case there is any dispute you should go for the probate of the will.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Property will devolve on you and your brother as per your father will on demise of your sister

2) your other siblings would not have any share in property

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

Apply for probate of deceased father will

Enclose father and sister death certificate

You don’t need succession certificate

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

When there is a WILL is available it is your duty to you send a legal notice to other siblings claiming your rights as per the WILL. If they opposed the same then you may approach the district court where the properties are situated to declare you and your younger brother as a owner of the property.Without proving the WILL you cannot claim right on the property. Succession certificate or legal heirship certificate would be a supportive document to prove your case. In the succession certificate your siblings name also will be mentioned as legal heirs.

Selva Perumal
Advocate, Chennai
329 Answers
36 Consultations

4.9 on 5.0

1. It's not clear in your letter, whether the property had been transferred in your deceased unmarried sister in the revenue records or not based on your late father's WILL or the records are still not updated and whether the records still indicate your late father as the owner of the property?.

2. Registration of WILL is optional and even the non-registered WILL is valid if your father was in good mental health at the time of his execution of the WILL with 2 witnesses.

3. As per your narration your father's WILL is valid and your unmarried sister had only life interest over the property and since she is no more and has died intestate, the property should devolve to you and your brother, as per the contents of your father's wish.

4. In the instant case, there is no need to obtain Succession Certificate from the Court.

Shashidhar S. Sastry
Advocate, Bangalore
4166 Answers
258 Consultations

5.0 on 5.0

The same shall now come to you

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You will get the succession certificate from the civil court of competent jurisdiction.

Get in touch with a local lawyer.

NOC of other legal heirs (if any) will be required.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. first check where the Will was made

2. if it was made in Maharashtra, then get the Will probated by filing a probate petition in High Court

3. once the will is probate, the executor can apply to the court to transfer the property to you and your brother as per the wishes of the testator, since the original legatee i.e. your sister has passed away

4. if no one objects from the sister's side, then the transfer will go through

5. the wishes of the testator has to be followed. So the property will go to you and your brother as directed in the Will after demise of your sister. Her legal heirs cannot claim rights in the property

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

Dear Sir,

After the death of your sister the properties must be inherited only as said in the Will of your father. It was not challenged and it is valid until it is declared void by any court of law. It cannot be divided among all the sib linings. They may put a claim but they have not challenged till today the Will executed by your father knowing fully well the contents therein. It was also acted upon by your late sister. Since she has not executed any Will then the earlier Will of your father Will prevail even today.

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Landmark decisions of the Supreme Court

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i. Effect of nomination made under Government Saving Certificates and Life Insurance Policy. – [Vishin N. Khanchandani & Anr. v. Vidya Kachmandas Khanchandani & Anr. (246 ITR 306)]

ii. Hindu Succession Act – succession of property devolving from a female Hindu.– [Bhagat Ram v. Teja Singh (252 ITR 324)]

iii. Indian Succession Act sec. 213 and sec. 57 – Will – Does not operate only against Indian Christian – sec. 213 does not discriminate on basis of religion. – [Clarence Pais v. Union of India (2001 AIR 1151)]

iv. Will provided uneven distribution of assets is valid. – [S. Sundaresa Pai v. Mrs. Sumangal T. Pai (2001 (8) SCALE 309)]

v. Disposition intra vivos by gift of undivided share or interest in coparcenery property without consent of the coparceners : Gift does not partake character of Testamentary Succession u/s. 30 of Hindu Succession Act, 1956. – [Pavitri Devi & Anr. v. Darbari Singh & Other (1993 4 SCC 392)]

vi. Interpretation of Will – Distinction between vested interest and contingent interest created by Will. –[Usha Subbarao v. B.N. Vishveswaraiah & Ors. (1996) 4 SCC 201]

vii. Proving of Will — If evidence adduced is legal and convincing, satisfies the conscience of the court and there is nothing unnatural about the transaction, mere conjecture or unfounded suspicion should not be permitted to sway the verdict that the will has been proved — Witness being classmate of the son of the legatee would be interested in obliging his classmate’s mother so as to benefit her and go to the extent of falsely deposing was too farfetched an inference to draw — There is no rule of law or of evidence which requires a doctor to be kept present when a Will is executed – [Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85]

viii. Bequest in favour of wife — Absolute interest or limited right bequeathed — If property is given with a right of alienation, held, bequest is a conferment of an absolute estate — Having granted absolute right or interest to a devisee it is not open to the testator to further bequeathed the same property in favour of someone else — Therefore, any subsequent bequest in the same Will in favour of someone else would be invalid — However, if the Will clearly indicates that only a limited or restricted right is being bequeathed to the wife, then a subsequent bequest, in favour of someone else to take effect after the death of the wife would be valid. – [Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors. (2002) 2 SCC 468].

ix. In view of section 63 and the proviso to sec. 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will – (Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande (2003 AIR SCW 4018).

x. Section 118 of the Indian Succession Act is discriminatory and violative of Article 14 of the Constitution. Therefore, restriction on an Indian Christian having a nephew or niece or any nearer relative to bequeath his property for religious or charitable use is struck down as unconstitutional. Their Lordships further observed that the word 'relative’ means legitimate relative and has no application to any relationship by marriage. Thus a wife of a person is not his relative but an adopted is. – [John Vallamattom v. Union of India (2003 AIR SCW 3536)].

xi. Succession Act, 1925, Ss. 63, 70 – S. 68 Proviso – Codicil – Execution and attestation of – Must be in same manner as a Will – Since codicil is an instrument made in relation to a Will.

Attestation of codicil – Registrar of deeds cannot be 'statutory attesting witness’ to codicil merely by discharging duties of registration – To be attesting witness to codicil Registrar should attest signature of testator in manner contemplated by S. 63(c) of the Indian Succession Act, 1925.

Codicil dictated by testator of Will in presence of witness and Registrar – Signed by testator in presence of witness and Registrar – Both Registrar and witness put their signatures with a view to attest signature of testator – However, neither the Registrar nor the witness called in witness-box to depose attestation – Codicil not proved.

Registration of document as codicil or Will – Does not dispense with need of proving execution and attestation of codicil/Will as per Evidence Act – Endorsements made by Registrar are relevant for registration purposes only. – [Bhagat Ram and Another v. Suresh and Others (2003 AIR SCW 6518)]

xii. Succession Act, 1925, Ss. 220, 227 – Probate or Letters of Administration – Grant of – Does confer title to property – But merely enables administration of estate of deceased – Testamentary Court is only concerned with finding out whether or not testator executed the testamentary instrument of his free Will. – [Mrs. Vijay C. Gurshaney & Anr. v. Delhi Development Authority (2003 AIR SCW 4158)]

xiii. Hindu Succession Act — Father-in-law of the widow governed by Mitakshara school died intestate. Sub-section (2) of section 3 of the Hindu Women’s Right to Property Act, 1937 would apply in respect of joint family property but thereunder only widow of the said father-in-law and not widow of his son would be entitled to a claim. Hence the said widow of the son acquired no right under the Act. [Ram Vishal (Dead by L. ₹and Others v. Jagan Nath and Another (2004) 9 SCC 302]

xiv. Hindu Adoptions and Maintenance Act (78 of 1956) — Adoption of son does not deprive adoptive mother of power to dispose of her separate property by transfer or by will. [Ugre Gowdav v. Nagegowda (D) by L. ₹(2004) AIR SCW 4308].

xv. Proving of Will — Onus to establish allegations of undue influence, fraud or coercion is on the persons making such allegations. Proof in either case should be one of satisfaction of a prudent man. [Sridevi and Others v. Jayaraja Shetty and Ors. (2005) 2 SCC 784]

xvi. Genuineness of unregistered will — The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain all legitimate suspicions to the satisfaction of the court before it accepts the Will as genuine. [Meenakshiammal (dead) through L. ₹v. Chandrsekaran & Another (2005) 1 SCC 280].

xvii. Primary evidence sufficient to discharge the onus — Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence.

In order to assess as to whether the will has been validly executed and is a genuine document, the propounder has to show that the will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. [Daulat Ram and Others v. Sodha and Ors. (2005) 1 SCC 40]

Under section 263 of the Indian Succession Act, the grant of probate or letters of administration may be revoked if the proceedings to obtain the grant were defective in substance; or the grant being obtained fraudulently by making a false suggestion or by suppressing from the Court something material to the case or if the grant was obtained by means of untrue allegation or if the grantee has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter – VII of Part – IX of the Indian Succession Act.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. It seems that only a life interest was created by your father in favour of your youngest sister, whereas the property was to revert to you and your younger brother after her lifetime.

2. A life interest holder has no competence under the law to make a will in the first place as he is supposed to only reside in and enjoy the property during his lifetime.

3. In terms of the will of your father the property has devolved now on you and your brother alone. You and he should apply for mutation in your respective names by annexing the will of your father and death certificate of your sister. Your other siblings have no share.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

What do you require the Succession Certificate for? It is required for movable and not immovable property. You just apply for mutation.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

However, my sister has passed away without making a will. Now whether the property should come to me and my brother as mentioned in my father's Will or it will be divided among all the siblings of the deceased unmarried woman (i.e. all the remaining brothers and sisters) as provided in the case of intestate death.

If there is a valid will you may acquire the property along with your brother who b0th are the beneficiaries of the Will by enforcing the will.

If there is any problem or objection from your other siblings then you may approach court with a probate petition seeking grant of probate and then enforce the bequest made accoridnlgy.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

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