1) it does not operate as will
2) deed of family settlement for division of property needs to be stamped and registered to be admissible in evidence
3) registration has to be done within maximum period of 8 months
4) it cannot be done after 10years
Property divided among family members by writing on 20 Rs Bond paper but not registered
Sir, My grand father has 2 sons( including my father) and 3 daughters. In 2008, property settlement was done by writing on Rs 20 bond paper signed by My grand father , Grand mother, My father, My uncle( 2nd son of Grand Parents ). They made 3 parts of entire property and was distributed each to grand parents - 1 part , My father - 2nd part, My uncle- 3rd part. But above document was signed by above 4 members but not registered. Now, My uncle is claiming majority of the portion for him not obeying the document. 1. Grand Father- Expired( acquired all property by him through earnings ) 2. Grand Mother- alive 3. My father- Expired 4. My uncle- alive Kindly clarify below please. 1. Is that document is accepted as WILL? 2. Can we get share property of 2nd part? 3. Can we do registration without The 3 daughters mentioned above as above 3 are being influenced by my uncle?
Asked 5 years ago in Property Law
Religion: Hindu
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12 Answers
Partition deed should be made on 100 rupees stamp paper and civil suit should be filed in local court in this regard to get order on partition.
On the order of the court it should be presented before tahsildar to allow mutation in respective names.
A Will is a legal declaration of the intention of a person (testator) with respect to his property or estate, which he desires to take effect after his death.
(i) The Will must be executed by the testator, i.e., the person making the Will (or by some other person in the testator’s presence and under his directions; if it is not possible for the testator to affix his signature, he may also put his thumb impression);
(ii) The signature should be placed in such as manner that it appears that it was intended to give effect to the Will;
(iii) The Will should be signed by the testator in the presence of two witnesses (other than the beneficiaries under a Will), and the witnesses must also attest (i.e., sign).
In India, registration of Wills is not compulsory. A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, (Act), and according to section 18 (e) it is the testator’s choice as to whether he wishes to register it. There is no stamp duty payable. But if one chooses to register a Will with the applicable registrar/sub-registrar of assurances, the registration provides evidence that the proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identity. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness. It doesn’t have to be executed before a notary public.
1. That document will not be accepted and treated as a will.
2. Yes you can get the share in the property.
3. They also are the legal heir and any division without the consent of the daughter will be treated as invalid.
Regards
1. If the document in question was a memorandum of family arrangement then it required no registration. Unless the document is perused it is not clear what it was and what is the nature of rights created by it.-
2. It surely cannot be a will as the will is signed by the testator alone with his attesting witnesses. You must get the document examined by a lawyer. Sitting here before our computer screens we cannot say what it is unless we see it,.
1. any settlement of a self acquired property done during the lifetime of the owner in favour of the future legal heirs is not binding on the parties
2. because as long as owner is alive, his 'to be legal heirs' have no right in his property
3. so neither can such future legal heirs give up their future share or take any such share when owner is living
4. the legal heirs get a right over the property only after the owner dies, that too if the owner has not made a Will of his property in favour of other persons or has not sold or gifted his property in his lifetime to some third party
5. so the settlement deed will not bind your uncle and 3 daughters
6. as grandfather died without making a Will, his property will go to his legal heirs being his widow, children and mother (if alive) in equal proportions
7. you will have to file a partition suit now to claim the 2nd part or in the alternative your legal share as per intestate succession
1. Since you are a Hindu, the Self-Acquired property of the GrandFather HAS to be distributed EQUALLY amongst his wife (GrandMother, Son-1 (your father) & Son-2 (uncle). This is irrespective of non-existence of will or the 20/- Bond paper. Legally, the Uncle CANNOT claim more than 1/3rd of the Grand Fathers property, in any way. The sisters will not be able to stake any claim and no consent signature is required.
2. The 20/- Bond Paper CANNOT be classified as a Will, "BUT" SHALL be legally enforceable in a Civil Court, as secondary evidence, provided Civil Suit is filed. The deceased Father's share shall be shared by the Father's Legal Heirs only.
Keep Smiling .... Hemant Agarwal
Dear Client,
Unregistered Deed is not valid however courts have generally held that family settlement is biding on the parties. Document cannot be taken as WILL.
Oral arrangement is accepted but once reduced in writing, needs compulsory registration.
Registration not possible without daughters consent.
The document shall not be accepted as the will but it is valid as the unregistered family settlement deeds are also valid,
further you can file a declaration suit over the second part based on the family settlement deed.
Registration directly wont be permissible you need to file a suit for declaration.
Hi
1) The property though they are self acquired, it appears that the grand parents had executed a property settlement deed which was signed by Your father and Uncle(sons). The Daughters have been excluded.
2) The property settlement deed need not be registered as the said document clearly outlines the intention of the intention of the grand parents to bequeath the property to the sons.
3) The document is not a will either.
4) However the property settlement deed cannot be construed as Conveyance deed as it is not registered.
5) Since the parties to the document(Your grand father and Father) are no longer alive, the only recourse available to you is to
a) File a suit for partition in the court relying upon the settlement deed.
b) Array your uncle and 3 daughters as respondents
c) Prove the signatures of your grand father, grand mother, Father and Uncle in the settlement deed in the court and
d) Obtain your share of property as per the document through a court decree.
Hope this information is useful.
Kindly clarify below please.
1. Is that document is accepted as WILL?
It cannot be considered as Will, it is an unregistered partition deed.
2. Can we get share property of 2nd part?
An unregistered partition deed is not valid in law
3. Can we do registration without The 3 daughters mentioned above as above 3 are being influenced by my uncle?
It cannot be registered at this stage especially since your grandfather is not alive now.
The property has to be divided into six equal shar,es which includes the shares for the daughters of the grandparents.
The daughters are entitled to a rightful share in the proeprty left behind by their father who is reported to have died intestate.
If no amicable settlement or solution is arrived then a partition suit before court of law would be a better option.
1) If the property is self acquired by your grandfather and settlement deed has two witnesses signed the document we can show this document as a wish of your grandfather and it's like a WILL.
2) If you do have possession of the property than you shouldn't leave this property at any cost.
