My father (Muslim ) executed a will for more than 1/3 of the property that he left, for fulfilling his religious rights.. in favor of one of the legal heir-B. Period of execution and registration of the will 1982. Father expired on the year 1986. B did not obtain consents for the will from the other co-sharers. B stayed outside India (Overseas) for a long time and returned permanently by this year 2019. I sent a notice to B, to restrain from claiming the will given part of the property .( when he was physically present here) for which there was no reply. I want to file a suit for declaring such a will was null & void, invalid and inoperative, consequently to cancel the registration of the will. Does Law of Limitation applicable? Read more at: http://www.lawyersclubindia.com/experts/experts_display_list_unresolved.asp?mode=open
A co- legal heir and co-sharer executed and registered a settlement deed to one of his daughter, in which he had settled half of the property a dwelling house, without legal authority, rights and upon which he had also inducted her into the property, in which she raised a structure and obtained Govt., power supply to retain her possession, by which the right and share of the other genuine co-sharer ( B ) is narrowed / affected? How (B) can file a suit for injunction against the unlawful transferee ?
Declaration suit to declare a Muslim will is not valid, consequently to cancel the registration of that. When does cause of action accrue? -from the date of execution of the will? or from the date of the expiry(death) of the testator? or from the date of presence of the beneficiary? or from the date of knowing such a will exists? or from the date of parting with such will given part of the property?
you should file suit for partition for division of property by metes and bounds
2) seek injunction restraining sale of property by B
3) if B seeks to rely upon will take the plea that as per Muslim
personal law Muslim cannot bequeath more than one third of property by will
B had to file suit to set aside settlement deed executed by A in favour of daughter seek injunction restraining sale of property by the transferee
You can challenge it up to 12 years from the date of knowledge of will. You need to file testamentary suit to challenge for the same
As per law when you want to challenge the will knowing it and its lacuna will obviously result in cause of action
Limitation when cause of action accrued, since you are in active possession of property and only in 2019, B raised his claim on the basis of WILL, Issue under limitation. And WILL is invalid ab initio due to no consent of other heirs is obtained after the death of the testator.
Settlement deed is valid.
There is no law of limitation for probate of will.
There will be no benefit in filing the suit for declaration because the property has been willed to B and he will be owner of that property as the will was in your knowledge long before you have sent the notice to B.
If you want to cancel the registered Will, you should have filed a suit for cancellation of the same within three years from the date it came into force or from the date of your knowledge.
In my opinion, it may be barred by limitation, however you can get an opinion about proceeding with the proposed suit from a local lawyer and then take a decision.
The aggrieved party who has been deprived of his legitimate share in the property can file a partition suit and also file an application under order 39 rule 1 and 2 seeking to restrain the defendants from alienating or encumbering the property in any manner.
The cause of action will arise from the date the Will becomes enforceable.
Following the valid opinion of Learned Advocate, Yogendra Singh Rajawat, I have filed a civil suit being, on the ground 1) Being a Muslim more than 1/3 of the property willed away and 2) without the consent of the other legal heirs.
Good
You should succeed as Muslim cannot bequeath more than one third of his property by will without consent of other legal heirs
Well, it is nice to her that you have finally taken legal steps to get remedy or reliefs.
You may wait and watch the developments through this law suit.
Best of luck