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Proving registered will
Addressed: My grandfather had executed a WILL and has registered it in December 1974. Now after 35 years, the daughters have claimed that it is a fake WILL and claiming a share in the ancestral property In the process of proving the WILL - both witnesses are no more. We had applied to the court to summon the sub-registrar to prove the registration. Strangely, the court has rejected our application for summoning. Please advice the next steps.
Asked 5 years ago in Property Law
Religion: Hindu
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14 Answers
In the event that no such attesting witness is alive or can be found, then as per section 69 of the Indian Evidence Act, 1872, the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.
Document is registered in the office of Sub Registrar need not to be proved. It is admitted fact that your grandfather executed a Will and regd in dec'74. The daughters have filed the case, they are to prove that the Will is fake. You/your lawyer is to cross the witness of the opponents. The onus is on them to prove that Will is fake. Onus is not on us to prove that the Will is genuine. It is genuine. Contest your case forcefully and cross their witness. Truth would prevail.
See since the will is registered the court based on registered will can decide the issue, further through RTI you can seek details of registration from sub registrar office and can submit same before the court.
This is my response to you:
1. Strictly speaking the rights of ancestral property cannot be alienated by one person alone;
2. Everybody has a claim on them;
3. You must be 100% sure if it is ancestral or self acquired;
4. Consult a local lawyer and take steps.
Dear Sir,
It cannot be challenged on the basis of following law of the statute. It has presumptive value. Court will presume it to be true. Nothing to be worry.
Section 90 in The Indian Evidence Act, 1872
90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
1. Registration of WILL is optional. Unregistered WILL shall also carry the same legal validity as that of registered one, provided it is witnessed and signed by two witnesses.
2. If you are sure that the WILL was registered in the year 1974, then you can obtain certified copy of the WILL from the Sub Registrar's Office in which it was registered.
3. If it is agreeable to you and if your aunts' also agree, enter into Compromise Petition and settle the matter amongst family members.
1. It is not sure why the court has rejected your prayer. Since the court has wrongly passed the order of rejection you must file a revision in the high court.
2. Even of the witnesses are are dead or untraceable then their signature can be roved by their children or friends who are acquainted with their signatures.
You can file appeal against the said order to the appellate court or produce certified copy of registered will which is presumed genuine under section 86 if Indian evidence Act. And the same can be proved from the record under section 78 of indian evidence Act.
1.Ancestral property will be distributed according to the Hindu Succession Act.
2.An ancestral property means a property which is devolved upon heirs by the 3 generations above them; father, father’s father or father’s fathers’ father. It passes to the next three generations..
3.if it is ancestral property then she can claim her share.
4.If no such attesting witness can be found, or died it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. It provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person.
What is the need of calling registrar. 30 years old document, presumption of duly executed/attested and sign by purported person/witnesses. Their claim in dead Let them proved WILL is fake and more importantly claim is barred by limitation.
You may prefer an appeal against the court's decision before the appellate court challenging the decision to reject the petition seeking permission to examine the sub-registrar as witness before the high court in a revision petition.
1. You shall have to apply for probate of the will before the Court.
2. The Court will send copies of your saidm probate application to all the legal heirs of your deceased grandfather's properties to enable them to either contest or give consent.
3. Actually the contestants shall have to prove the will as fake and at that time you shall have to countere all their arguments.
4. Yiou can pray for a direction upon the Registrar to submit records of the said registration and also get the handwriting/signature of the dece4ased witnesses verified from handwtiting expert through court order.
Dear Client
If your will is registered with sub registrar you can file a RTI to seek the true copy of registered will and produce that as evidence in the court.
And if it is not registered that it has to be proved by one witness who signed the will for attesting the signature of the testator.
