Probate not compulsory in Christians and trasfer of name dose not transfers ownership. Since your father is expired, his wishes attained finality. Sooner or later, father share will trasfer in her name. And your mother can still change her WILL and can give her share to you.
Transfer of Flat on death of First Holder
My father and mother, are joint holders of flat. My father died on 15.10.2018. My parents made a joint will giving the flat to my sister stating that "this will is effective only on the demise of both the Testators". The society has transferred the flat in my sisters (first holder) and mothers(second holder) name. Is the transfer legally valid? Over ruling the will? Will has not been probated? Does the Christian Succession Law over rule probation of will?
Asked 6 years ago in Property Law
Religion: Christian
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11 Answers
Please state case laws and quote the section/ sub section of the acts/ rules
Asked 6 years ago
Transfer of ownership by society does not have any legal validity. It is only a mere formalities and can be challenged by legal heirs or title owner anytime.
Joint property in the nature of tenents-in-common with no specific share - on death of one owner ownership passes to legal heirs of the deceased owner.
In case of property in the nature of joint tenancy, on death of one owner ownership passes to other joint owners.
In your case this joint will is in effect two wills. There is some technical mistake as to the ownership during the intervening period of death of two testator. On death of father his share to be held by mother and she can not change her mind after death of father. This is one can reasonably draw an inference as to the wish of testator. But legally she does not become the owner in case the property is in nature of tenents-in-common. So It is not drafted properly leaving ambiguity which may draw complexity in tax and other legal aspects. Court clarification may be required.
If the said flat was self acquired property of parents they have right to give it to anyone. Now at the most you can challenge the will on ground of illegalilty.
Probate of will is not mandatory for Christians
2) flat ought to be transferred in your sister name only on demise of your parents
3) as on date sister has no share in flat
Section 57 of the Indian succession Act makes it clear that the provisions of that part which are set out in Schedule III subject to the restrictions and modifications specified therein, shall apply to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina after the first September, 1870 who are originally residents in the jurisdiction of the High Courts of Judicature at Madras and Bombay or subject to the jurisdiction of Lieutenant Governor of Bengal and to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits and to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927 to which those provisions are not applied by clause (a) and (b), provided that marriage shall not revoke any such Will or codicils
2) The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories.
No probate is necessary for Christians wills.
See transfer is not valid if joint will as same is effective after the death of mother in life of mother she has all the eight.
No since will is there after mothers demise daughter shall have on right it shall not be distributed as per succession act.
See if will is there succession shall be testamentary that is as per will not as per the succession act.
1. Will of a Christian is not compulsorily required to be probated
2. however the directions contained in the Will must be followed in letter
3. if the Will directs that the flat should go to sister only on demise of both testators, then since one of the testators is still alive, both the Wills do not take effect and the society is precluded from effecting any transfer in joint names of mother and sister
There's a Will to dispose the property, since Will has not come into force, the property cannot be acquired by the beneficiaries now.
The transfer of share by society is not a title document hence nothing to be worried on it.
The transfer is illegal as per will of parents.
But you cannot challenge that transfer because it was your father's wish that flat would be transfer on name of your sister.
