My father is the single child of his parents and my grandmother passed away in 2014 intestate. After the death of my grandfather in 2016 sep his brothers come up with a xerox copy of his alleged will and filed it in mumbai high Court for probate stating that there is no living legal heir to their brother. Which we contested and filed a caveat against it, since then its been 2 years but still no hearing date come up. Fed up from all of this both the parties comes to mutual understanding and want to go into a testamentry suit settlement. Our terms of settlement is... 1. They agree that my father is alive and he is the only living leagl heir to my grandfather. 2. One of the property which is mentioned in alleged will is a flat in andheri west in name of my grandfather (currently locked and jn possession of my father's uncle ) which is valued at least 2.5 crore as per market value .... On which we settled in a way that if the other party gives us 1 crore rupees we will give them the flat. 3. One mentioned property is in palwal 550 gaj plot with a house in it.(in our possession and transferred in my fathers name by revenue office) ... On this our agreement is that other party will have to give us this plot nd house in return of the flat and the 1 crore which is mentioned in point 2 4. The rupees in bank should be divided in a way that we want one by third of that.(the nominee of the accounts and fixed deposits is my fathers cousin ) Now the issue is that how to give all of this a legal form. Questions are 1. As the other party is not ready to give us the money in advance is there any way that the money can be mediated by court in a fair manner for both parties(like money will be given to us when the settlement agreement is approved by court) 2. The mumbai flat is disposed in a way in alleged will that property should be used for educational trust purposes and taken care by my father's uncles. My concern is, will the judge allow to dispose this property as per our wish or is dare any chance that he can reject the settlement on the basis of ignorance of deceased wish by parties. 3. There are other properties which are not part of this will in my grandfather's name and has been transferred to my father's name as per succession law. Is there any way that the parties can evoke legal issues in future regarding those properties? 4. If both the parties want to sell the flat and divide the money accordingly then what is the process for that as the flat is in my grandfathers name and he is deceased. 5. What documents need to be prepared nd of whom the affidavit should be filed to support the settlement agreement. Can this agreement can be contested in future please explain the measures to be taken to avoid this. 6. Kindly explain the work flow like how this settlement process work. The steps that are required d. Like from starting till the end. Thanks in advance.
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File consent terms in testamentary suit
2) the sum of Rs 1crorecan be paid to you at time if filing consent terms in HC
3) court will approve the consent terms
4) it should be mentioned in respect of properties uncles woukd not claim any share
5) it should be mentioned that flat woukd be sold within 6 months of signing consent terms and sale proceeds distributed equally
6) consent terms have to be be signed by parties and advocates for the parties
7) no need for any affidavits
1. Is dare any kind of income tax we have to pay on the amount of money that we are getting from other party? 2. And how will the registry take place. Who will be able to sell the property as currently no one is entitled to sell it. 3. Sorry am focusing on money receiving part again... As the scenario is that both the parties lack trust with each other thus its highly unlikely that they give money in advance or we sign on the concent term in advance without receiving due to the fear of deceiving from one another. So kindly suggest a way on which both parties feel trusted and comfortable...
under family arrangement there is settlement of shares, distribution of rights and therefore it cannot be construed as transfer under taxing statutes. If there is no transfer, there is no capital gain and thus, no capital gain tax can be levied on it.
2) apply to society for transfer of flat in name of legal heirs as per the consent terms filed in court
3) society would transfer flat onbasis of indemnity bond
4) flat can be then sold abd sale proceeds distributed
Hi,
You are suggested to get the case transferred to the mediation centre where the settlement can be done with all due care. This will be accepted by the court also and this will not be challenged in future too. Rest of the property (not mentioned in Will) will not suffer any issue from the other party. The income tax liabilities to be taken care of due to that gain. For the safety purpose the money can be deposited in a bank and same may be mentioned in the agreement.
1. A consent decree can be passed by the HC if there is a family settlement which is placed on record along with an application. The court will pass a consent decree if it finds that family arrangement has been executed by parties with free consent.
2. It can be mentioned in the family arrangement that amount of One Crore has to be paid when the application is filed in the court.
3. The process is simple. You need to execute a family arrangement and then file it in the court along with an application to pass the decree in the light of it. The advocates for the parties have to identify the respective parties. Nothing else is required.
The family arrangement refers to a partition which cannot be taxed. Under family arrangement there is an adjustment of shares, crystallization of respective rights in the family properties and therefore it cannot be construed as a transfer in under the Taxing statutes. The courts have held that under a family arrangement or partition, any property transferred cannot be taxed under capital gains. Such giving away of property under a scheme of family arrangement cannot be construed as 'transfer' for capital gain purposes. Therefore, there is no liability to pay capital gain tax under Section 45 of the Income-tax Act, 1961.
1. The court will not interfere in the mutual agreement between the warring parties.
It will not even give directions for the modality for the compromise settlement.
The court will remain a silent spectator on the terms of agreement between the parties.
If the parties do not compromise within themselves and there is no possibility for a settlement, then the court would conduct the trial and pass decree and judgment as per law.
2. The court will not interfere in the mutually agreed compromise settlement arrived among the parties to the suit.
3. No, they dont have any rights over that properties.
4. The parties to the dispute may jointly sell the property by executing a registered sale deed jointly.
5. The documents, affidavits and other local requirements will be taken care of the local advocate, hence you may be in touch with one one of them.
6.This is based on the prevailing circumstances, hence a local advocate will be able to guide you properly instead of getting misguided over the incomplete information or suggestions rendered from this forum, because the advocates here have not seen the actual documents or knowing the background of the dispute hence any wild opinion given may not be feasible practically.
1. Yes, you may have to pay the applicable taxes towards capital gains accordingly.
2. Based on the compromise decree by the court, the parties to the suit as per the decree passed by the court,. the sale deed can be executed.
3. In such an event you may ask the other party to pay 50% at the beginning and balance at the time of execution of the registered sale deed.
if the deceased died testate and left a Will, pursuant to which his executor has filed a probate petition, then the executor has to prove the due execution and attestation of the Will, in the pending testamentary suit
the executor/plaintiff cannot compromise with the legal heir of the deceased in a manner which is contrary to the directions given by the testator in his Will
if the testator wished that his flat should be used for educational trust purpose, then it cannot be disposed. by any settlement between the executor and the legal heirs
in the event the executor fails to prove the Will, then the properties of the deceased will devolve on the legal heirs of deceased as per intestate succession
the proposed settlement agreement or consent terms sought to be filed by you will not be accepted by the court and this act will be taken as a breach by the executor of his duties under the Will, due to which the court can even remove him from executorship
this could also be possible that WILL is forged ?
Better pursue probate, It is registered ?
