• Rights of will

My father passed away in 2016, leaving behind a revised will which leaves 50% of the property to my mother, the other 50% to my younger brother, excluding myself and my younger sister who is married. My younger brother being a lawyer and living with my mother. I was thrown out of the house in 2005. Original will was equal shares to the three siblings.
My questions
1) Is the will valid if the Khata is not transferred within a stipulated time.
2) Do I and my sister have any rights to the property.
3) My younger brother is trying to sell the property without our consent. Does this require our consent.
4) Can my mother change the will now.
Asked 4 years ago in Property Law
Religion: Hindu

4 answers received in 30 minutes.

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15 Answers

1. Mother has no rights to change the will of her Husband, since it will be legally null & void.

2. All the residual Legal Heirs are entitled to EQUAL share of the deceased's property, PROVIDED you prove that the deceased executed will under mental duress, coercion, fraud, and so on .... However for this you have will have to file a Civil Suit, challenging the Father's will.

3. File caveat before the local Registrar of sub-assurances restraining him to register any such sale agreements relating to the deceased's property. Also file caveat before the Civic body /Revenue authorities restraining them against making any transfers in their records.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

Please tell whether the property was self acquired property of your father if it is then his will will be valid and your Brother has right of only 50% share to sell and if your mother writes another will in your and your sharer favours of her 50% share you people will get a right if not then your mother will be absolute owner.

If the property is ancestral in character then you people can claim a share in property.

Your consent is not required to sell the property. It's advisable to file a suit challenging the will as illegal and forged and to declare the first will made by your father as valid.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Firslty, as it has been stated in your query that the later will shows the above mentioned shares.

Secondly, you may challenge it on the ground of forge and fabricated as the former will was giving some percentage to you also.

Thirdly, once it has been challenge then your brother may not be able to sell it, but, don’t remember to put the prayer of injunction against any transaction of the disputed property.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. A khata is not a document of title. It is relevant only for the purposes of collection of revenue. Omission to get the khata transferred does not have any nexus with the rights created under a bequest.

2. Neither you nor your sister has any right in the property in view of the will made by your father. You are free though to challenge the will on the ground that it has not been executed by your father with his free consent if you have documentary or ocular evidence to prove it.

3. Your younger brother is the owner of 50% of property, so he requires no consent to sell his share. If you file a suit for declaration of the will as illegal then you may seek permanent injunction to restrain him from selling the property and creating third party rights.

4. Your mother has no competence to change the will of her deceased husband.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. Yes the will valid even khata not transferred.

2.No if the property is will to your mother brother and if the will is valid.

3. Sir in case the will is valid your consent is not required as they are rightful owner of the property.

4. No will of father cannot be changed by your mother she can make her own will for her share.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Yes. No transfer of khata within a definite time does not renders the will bad.

2. No.

3. He does not require your consent.

4. No, she can only pass on her 50% to others if she wants.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Hi, it is advisable to file a civil suit for permanent injuction in order to restrain him from selling the property..You both have equal share in ancestrol properties

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1) yes, valid

2)Anyone who may have an interest to gain from the will can challenge a will.

3)The trustee usually has the power to sell real property without getting anyone's permission.

4)A will cannot be changed after the testator dies. A person may only change his will while alive.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

1. the validity or invalidity of the Will has to be decided by the court

2. if the subsequent Will is held to be invalid, then as per the first Will, you and your sister will have a share and right in the property

3. no he cannot sell. The buyer will ask him to obtain NOC of other legal heirs. Even if your brother goes to the authorities to have his name transferred, the authority will also ask NOC from legal heirs and in absence of such NOCs, the authority will require your brother to get a declaration from the Court that the last Will is genuine Will of your father

4. no she cannot. Will can be changed only by the testator and not the legatees.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Willis valid even if Khada is not transferred

2) you and your sister have no share in property as per father will

3) you can file suit for partition for division of property by metes and bounds

4) seek injunction restraining sale of property

5) brother will have to file for probate to prove the will

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

If the property that is included in the WILL and Revised WILL is the self acquired property of your father, then the WILL and Revised WILL cannot be challenged by you or your sister.

1) Change of Katha within a stipulated time has nothing to do for determining the validity of a WILL, infact Katha can be changed at any time after the death of your father,

2) Since your father died testate, leaving behind him a WILL and a Revised WILL, you and your sister do not have any rights, as it is his self acquired property,

3) Since your brother is the owner of 50% of the property, he has to take the consent of your mother who is the owner of the remaining 50%, your consents are not required,

4) Your mother being the 50% owner can object to the sale, and she in turn can bequeath the property through a Gift Deed during her lifetime in both you and your sister favour, or leave a WILL bequeathing her 50% in both your favour which will take effect after her death.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

no the mother can not change the will now.

Younger brother can not sell the property without getting the same divided.

No you do not have any right.

However, if in the first will it was written that this was my last will then you may challenge the validity of the second will.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Yes the subsequent will is valid, they can apply for khata at a later stage also

2. If it was a self acquired or his own property of your deceased father, then upon this testamentary disposition of the property, you both may not be entitled to any share in the property.

3. No, he does not require your consent for selling this property.

4. Your mother cannot change the Will if it was written by your father.

T Kalaiselvan
Advocate, Vellore
78096 Answers
1543 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

1) Is the will valid if the Khata is not transferred within a stipulated time.

Ans: There is no limitation but you must file your objections before concerned authority and also file a suit for cancellation such Will in Civil Court.

2) Do I and my sister have any rights to the property.

Ans: Yes, provided you establish that it is misconceived Will taken by your lawyer brother, you will succeed.

3) My younger brother is trying to sell the property without our consent. Does this require our consent.

Ans: That’s why approach the Civil Court and immediately get a stay not to alienate the property. there are persons who are ready to purchase such litigated properties.

4) Can my mother change the will now.

Ans: she cannot change the Will but she can say in the Court in respect of earlier Will and further say the late Will was taken by your lawyer brother fraudulently or otherwise.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Yes. Because there is no limitation for transfer of title in case of will.

If the property was self acquired by your father then you n your sister have no right due to will being made. If property is inherited by your father then will is invalid and you can claim share.

If will is valid as per above conditions then he do not need your consent.

No. A will can be changed only by its maker.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

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