• Unregistered will

Hi Sir,

My Grandfather had 2 Sons, my father and my chacha.
my father was resident indian and my chacha was a US citizen (who passed away in 1988, leaving behind a daughter who was born and brought up in US)
My grandfather passed away in 2003 leaving an Unregistered will with 2 witnesses in my Father's name.
My father passed away in 2006.
We are 3 sisters staying with my mother.
Now we plan to sell off the property and buy another property somewhere else in Delhi...but almost every prop dealer is asking for NOC from my chacha's daughter.
We took her consent sometime back on selling the prop , to which she replied that she has no right as the property is in my father's name....we had requested her to give the NOC to which she has replied that as per the Indian laws he also holds the right on the prop and will not sign the NOC.
Please advise if she can claim anything?
If yes, then is she eligible for 50% or the 5th share?

Regards
Asked 1 year ago in Property Law from nisha, Delhi
Religion: Hindu
Well, In Delhi the Will has no force unless and until the same is probated.
So, in other words you have to file a Probate proceeding in Delhi court wherein the notice will have to be sent to the daughter of your uncle.
After receiving of notice she can either challenge the Will ot give NOC or even remain absent in taking part in the proceeding.
In the last two options the Will would be probated without any hitch but in the first option if she contests the grant of Probate then you will have to prove the genuineness of Will in which even the Probate would be granted.
I may inform that in contested Probate proceeding it takes lot of time before you see the final verdict.
Devajyoti Barman
Advocate, Kolkata
5137 Answers
54 Consultations
4.9 on 5.0
A will is not enough. Every will assigns an executor who must apply for probate of the will from a court of competent jurisdiction once the testator is no more. You have to tell me if such probate was granted. Once such probate is granted the beneficiary must further apply for mutation and transfer of the Title deeds to his/her name. Have these procedures been complied with? 

If these procedures have been duly met then the property titles must stand in the name of your father and in such case only his legal heirs and/or successors stand to benefit from his estate. so please clarify your exact situation for better assistance.
Saptarshi Banerjee
Advocate, Kolkata
183 Answers
4 Consultations
4.9 on 5.0
1) probate of will is not mandatory in delhi 

2) once your grand father had executed will on his demise property would devolve on your father . 

3) on basis of the grand father will  was property mutated in your father name ? please clarify 

4) your cousin would have no share in the property  as per grand father will  

5) since probate of will has not been obtained purchasers are trying to play safe . had your grand father not executed will then your cousin would have equal share in the property 
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
Hello,
1) The Will of your grandfather is valid and absolute even if it is not registered.

2) If your grandfather's property was self acquired the will is final and your cousin cannot make any chain whatsoever.

3) On the contrary if the property was ancestral (handed three generations prior to grandfather undivided) then she can seek partition and 50% share in the property.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
1. The property dealers are fools to have asked for a NOC. Your chacha's daughter has no share in the property. Your father became the owner of the property after the will was executed in his favour by your grandfather. After the demise of your father his property vests equally in your mother, you and your 2 sisters. Nobody else has any legally enforceable share in the property.

2. If the property dealers cannot understand something as simple as above then may god help them.

3. Instead of selling the property through property dealers you can contact the prospective buyers directly. 
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) let mutation of property be done in your mother name first 

2) since relinquishment deed had been executed by you and your sisters your mother would be sbsolute owner of property 

3) your mother can execute sale deed for selling the property 

4) she can execute indemnity bond to indemnify purchasers against any claims 
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
1. As I said earlier, none except the children and widow of your father have any share in the property. 

2. After the execution of the relinquishment deed your mother alone has ownership to the property. So she is free to sell the property.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
If according to you the Mutation procedure is already in process then wait for the completion of such Mutation. Once mutation is completed your mother shall officially come to hold the title for the property. Such title will in due course of registration eliminate the probability of anyone else claiming absolute and/or part title of such property. 
Saptarshi Banerjee
Advocate, Kolkata
183 Answers
4 Consultations
4.9 on 5.0
1. She has no right on the said property since your grandfather has bequeathed the entire property in favour of your father through his will,

2. It is not mandatory to get the will probated at Delhi,

3. In normal case, no NOC is required to be taken from her but it seems that the buyer wants to play safe and asked for the said NOC,

4. However, you can file an application for grant of probate of the will to get a legal seal on the said will,

5. Your cousin at USA will get the notice to enable her to contest your application,

6. The Court will hear both the sides and either grant probate of reject the application,

7. In case probate is granted, you will be able to sell the property with out any NOC.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0
1. Your Uncle need not spend any money to claim share on the property,

2. The property belonged to your grandfather and his will, if accepted by all, is final,

3. If the will is not proved to be made validly, the property will be distributed amongst the decedents of your father and uncle,

4. Apply for the grant of probate of te said wiil as suggested in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0
1. By your narration it is understood that the property is still in your grand father's name.
2. Since your grand father had written WILL, duly attested by two witnesses, in favour of your father, the question of taking NOC from your chacha's daughter would not have arisen, if the WILL were to be probated.
3. As it is,  your chacha's daughter does not have any claim on the property since her grand father's property was not  willed in favour of her father.  However if she challenges the authenticity of the WILL in a court, then it depends on the ruling of the court. If the court set asides the WILL, then the property would be shared in 2 proportions, i.e., your mother & you 3sisters will get 1 share and your chacha's daughter will get another share, viz., 50% share to your family(comprising your mother & you 3 sisters) and the other 50% to your chacha's daughter. Please remember that this property is not ancestral and the property would devolve to the  beneficiaries as detailed in the WILL.
4. As per the contents of the WILL, your mother & you 3 sisters will have 1/4th share in the property.
5. Since you & your sisters have released your individual rights in favour of your mother through relinquishment deed the mutation of the property would be in your mother's name in municipal records.
6. It is for you to consider or not, whether to go for settlement deed with your chacha's daughter, if you feel that the WILL, if challenged will not stand the test of time.
Shashidhar S. Sastry
Advocate, Bangalore
1232 Answers
59 Consultations
5.0 on 5.0

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