• Inaction by Executors to implement Will

My father's younger brother had a very valuable land with an old house in it in Bangalore. When he died, my aunt got it transferred in her name. About 4 years ago she died. They had no children. She left a Will in which she gives the property to 11 inheritors, who are her husband's relatives. There are 3 executors named in the will. Two are from the beneficiaries and one is not a beneficiary (but a son of a beneficiary). The Will says since the property is indivisible, it may be sold and the proceeds be divided among the beneficiaries as per their entitlement. The Will is probated. In all these 4 years, only one genuine buyer has come, the Owner of the adjacent property. Half of the parties (all senior citizens) want to sell and the rest block the sale by telling that the price is low. Already crores are lost due to interest loss. I have a doubt that those who always oppose the sale have an aim to encroach it when the dust settles, because they are younger. Some people are not even attending meeting if we call. We are unable to proceed. My question is: Since the plot is not big enough to be divided, only way out is to request to sell it by a Court-appointed Receiver. Now the problem is nobody is interested to do all these things. I am alone in trying to solve this. I am not ready to do make all court deposits (huge amount) and work much. I am trying to see if I can do something with minimum money and travel (I am in another State). Part One is Get a Stay Order so that alienation and encroachment is not possible forever. I think it is fast and not much cost is there. Part two: I know if I file a suit for Court Sale, it will require a huge deposit and a rigourous follow up. I am not ready to do it alone. So I have another plan. File a suit complaining that the Executors have not done their duty since all these years and now also nothing, they have not even filed audits to Court as per probate. So the Will is not implemented fully. The Executors cannot say that are not responsible for the sale, because they had promptly distributed the bank deposits and gold. When Notice is served on them and they come, ask the Court to call all and share the deposit money and be a part of the whole case. Is the method I say workable? In case not, what I can do to bring all these guys to the Court and pay and share the work? After all, I am only a beneficiary and spent 3 lakhs without any result.
Asked 4 years ago in Property Law
Religion: Hindu

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10 Answers

Hello,

You must file a suit thereupon requesting the court to call upon the other legal heirs directing them to sell the property as per the prevalent market rate.

You are tight when you say 'The Executors cannot say that are not responsible for the sale', but they can always say that the price of the land are law and at that point you may ask the court to appoint a surveyor.

Also, send a legal notice to them before filing a suit so that you may recover the value of litigation from the division of the property. Mention in the legal notice that any court proceeding shall take place at your cost and expenditure.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

an executor has a duty to collect and realise the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator.

2)under Section 317 of the Indian Succession Act, it is duty of the Executor to submit Inventory within six months from the date of obtaining probate which inventory shall be in respect of all the properties.

3)where the Executor acts with extreme mala fides and where his acts border or enter the zone of misconduct as an Executor, there is sufficient ground for his removal. The conduct must be for the welfare of the beneficiaries, and to advance aims and objects of the Trust. If the conduct of the Executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised.

4) under section 301 of Indian succession act HC can remove the executors and can appoint successors in his place

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

1. in the probate petition, take out a notice of motion application to remove the executors and also include a prayer to appoint you as an administrator

2. then as administrator you can take up the sale of the property as per the Will

3. if there is any objection then you can file another application by including all objectors as respondents and seek a direction from court to them to come to an agreement for sale of property

4. in the alternative you can take out a single composite application seeking removal of executor. In that very application include all objectors as party respondents and seek directions against them

5. in the above application also include a prayer requesting court to appoint a court receiver for the property for the purpose of its management and sale and seek direction to that court receiver to file compliance report in court

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

Dear Client,

Better file for partition against all beneficiaries, This way court will summon them and than court will order sale and distribution of sale proceed acc. to WILL.

Or, since the executor failed to execute the WILL so file applcaiton in court to appoint executor. Best solution.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The sale of property through court appointed official receiver would be one of the best options before you.

If that is not possible then to secure the property you can file an injunction suit agaisnt the other beneficiaries restraining them from alienating or encumbering the property in any manner till everyone comes together for swelling the property together enforcing the bequest made in the Will.

You can even try another option of filing a partition suit seeking partition of property as per the recital of the Will and separate possession of your legitimate share in it and if it not possible to sell the entire property and to divide the sale consideration amount among the beneficiaries as per their entitlement.

You can discuss the subject at length with the local advocate and proceed.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

If you seek appointment of court receiver you would be directed to pay costs

You can request that expenses be split between the parties

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

If you want to remove the executor and have yourself appointed as administrator then you will have to bear all costs for administering the estate of the deceased

Whatever costs you incur can then be accounted from the estate of the deceased

This you can do by reducing the benefits of other legal heirs on a proportionate basis

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

What is that you have to deposit with the court while seeking to dispose the property through official receiver.

If you are not able to pay the court fee in this regard you may file a pauper suit .

In this case a petitioner who filed a petition for permission to sue as a pauper under Order 33, Civil P.C.,

Under the Code of Civil procedure, in case of a civil suit, the provision for the same has been provided under Order XXXIII with the title of suit by indigent person. Basically what it provides for is the special provision for the persons who are too poor to file a suit for themselves. It is quite apparent that the jurisprudence approach behind this provision is to simple enable a person no matter from what economical background is he from, to bring his matter of alleged violation of cause of action to the court. Being in consonance with natural justice, it not only protects bonafide claims of an indigent person but also safeguards interest of the revenue and protects the defendant from harassment.

Therefore if you cannot afford the court fee, you can file a suit as an indigent person

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Not court receiver but executor or receiver if appointed by court than his fees shall be settle from sale proceed and borne by all the parties equally.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Yes you may ask the court to impose cost on everyone.

Male all the legal heir a party to the said suit.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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