Background of the matter My Grand maternal father left an unregistered Will in 1990 for his agricultural land. He-My Grand maternal father had 3 daughters and had no son. This will is in favour of 2 eldest sons of his 2 elder daughters and his youngest daughter. After his death some of the remaining siblings who are the sons or daughters of his 2 elder daughters also started making their claim in this property and some people of the locality/Mohalla helped them in this effort and got created a settlement/agreement under their Leadership in the family and refused to accept the `Will` document of the Testator/Owner. In this settlement/agreement nothing was given to one beneficiary/real heir and share of one beneficiary/real heir was reduced while share of one beneficiary/real heir was increased . As a result, after some years a quarrel arose about this property and 2 cases were filed by 2 beneficiaries/real heirs named in the Will. First- A partition case in UP revenue board in 2011. Second- Will probate case in one district civil court in UP in 2019. After some months of later case i.e. Probate Case 2 siblings who are not real heirs of this property as their names are not in the Will document but rather got this property due to above described non legal type settlement/agreement have sold their parts. Consultancy points: I have already got consultancy from individual Lawyers for some of the questions given below but got some controversial answers. I am writing here those questions with received replies to those questions. I want your view/clarifications on those given replies by those lawyers. Please also give reply to new questions. Question 1/2 - Can Court set aside the above sale as null and void because of pendency of cases without filling a separate new case for this purpose. Ans- No. Question 2/4 - Please tell me whether the purchasers of above land need to be made parties in above 2 cases, particularly in the `Will probate` case as it will prolong this Probate process? Also, it is our desire not to make them parties at all as they are of criminal background Question 3/ 5-Can a registered will be substituted by a registered will only? Question 4/7- can we in existing suits amend the plaint and seek orders to set aside sale deed executed by the above described 2 sellers Question 5/8-Can Court set aside such a sale as null and void as it was sold after filing of probate suit in the court and also because of pendency of the ligation process? Question 6/10 -Who else in totality are necessary to be made parties other than 2 real heirs. Question 7/11-If a beneficiary in the Will challenges the Probate process of the Will and his challenge fails, the will is proved valid. Will then the no-contest clause of the Will come in to play and will prevent him from receiving the inheritance left to him in the Will. Ans: Yes, Absolutely Regards, Mahesh Kumar-[deleted]
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Background of the matter- Please use the same back ground as given for the original or regular questions Question1/1-If someone (As described above) has sold the property during the pendency of the probate case, then can the relief be sought by filing a separate suit seeking cancellation of the sale deed and for possession or it is not necessary ? Ans-Yes, but it needs to be filed for cancellation only after getting Probate order after execution of the Will Question 9/9-If a property is under litigation in 2 cases then will the Lis Pendens under section 52 of transfer of Land act will apply automatically or a separate Lis Pendens suit would need to be filed on this property? Ans-It will apply automatically. No need for separate case Question 12/12-Does the settlement/agreement described above has legal value it was done before any case on this property and also it violated legal aspect which says that Testator`s desire has paramount importance and cannot be violated or ignored? Ans: This is completely on the discretion of the court to decide because. when there is a WILL and the person making the WILL is dead, in 1990, it was the duty of the executor to execute the WILL right away. Your grandfather died in 1990 and probate was filed in 2019 after around 29 years. Law does not support those who sleep and slumber. Hence both sides can make strong arguments. Was there a legal heir certificate issued? Regards, Mahesh Kumar-[deleted]
1) you have to file suit to set aside sale deed
2) only legal heirs are made parties in testamentary petition for probate of will
3) in fresh suit filed by you for setting aside sale deed purchasers have to be made parties
4) registered will cam be revoked by subsequent un registered will
5) court can set aside sale of property
6) in suit to set aside sale deed all sellers ,purchasers are necessary parties
7) it is necessary to peruse the will to advice further
When you file petition fir probate delay of 29 years in applying for probate has to be explained
2) when Disputes arose between legal heirs probate ought to ha e been filed within period of 3 years
3) un registered settlement agreement is in admissible in evidence
4) separate Lis pendens suit is not required to be filed
5) separate suit for setting aside sale deed is required to be filed
6) not necessary to wait for obtaining probate order
Two situations here, testamentary succession( WILL) or intestate succession.
If TS - non have claim except 2 eldest son and younger daughter.
IS - Daughters have 1/3rd share each.
TS will prevail. Settlement is illegal and sale is too. file FIR agasint seller.
In probate only class I heirs will become party - daughters only.
In probate status quo order should have requested than sale would be illegal.
Sale dose not effect anyhtign, who ever purchase the property, order shall be binding on him.
1. The court will not set aside the sale deed automatically since there is a pending civil dispute in this property, however they may have to file a separate suit to declare the said sale deed as null and void as they were sold during the pendency of a civil suit. In any case the defendant canot be restricted from selling the property without a restrain order from court in this regard.
2. The subsequent purchasers may not be added as necessary parties to the probate case, however if you want to add them as parties to the suit then you can add them by invoking the provisions of Order 1 Rule 10 CPC.
3. Not necessary. An unregistered Will made subsequently shall be sufficient to cancel the previous registered Will.
4. No, it is not possible to amend the suit since it is not a cause of action for the suit since it is a subsequent development after institution of the present suit.
5. No, because in the absence any injunction order by the court competent, ther is no legal infirmity in selling the property.
6. The relief sought against the parties may be impleaded as necessary parties to the case.
7. The beneficiary need not challenge the probate of Will because it is the beneficiary who has to file a probate case to prove the genuineness of the Will and not the respondents, hence your question itself is contradictory.
Probate case is only to certify that the Will is genuine by an order of court, hence it has got nothing to do with the contents of the Will.
Upon the Will probated by the court competent, the beneficiaries can enforce the Will by due process of law, then if they find that the property has already been sold, they may file a suit for recovery of possession by seeking to set aside the sale deed or cancelling the registered sale deed.
The subsequent answers given by expert lawyers from your side, in my opinion, are more appropriate, hence you may decide further course of action on that line.
My replies to your queries are in BOLD
Question 1/2 - Can Court set aside the above sale as null and void because of pendency of cases without filling a separate new case for this purpose.
The actual legatees named in the Will can challenge this sale on the ground that the property was bequeathed to them by the testator under his Will and the sellers had no right in it and thus they could sell the propertyAns- No.
Question 2/4 - Please tell me whether the purchasers of above land need to be made parties in above 2 cases, particularly in the `Will probate` case as it will prolong this Probate process? Also, it is our desire not to make them parties at all as they are of criminal background
the purchasers can be made parties in the civil case but not in probate case [since a probate court does not adjudicate on title issues, but only checks whether the Will is genuine or not]Question 3/ 5-Can a registered will be substituted by a registered will only?
not necessary. Actually a Will is not compulsorily registrable. Just because a Will is registered, that in itself does not lend itself more weightage than an unregistered WillQuestion 4/7- can we in existing suits amend the plaint and seek orders to set aside sale deed executed by the above described 2 sellers
yes you can. But dont make them parties in probate case for the reasons stated aboveQuestion 5/8-Can Court set aside such a sale as null and void as it was sold after filing of probate suit in the court and also because of pendency of the ligation process?
it really does not matter whether a probate case or a civil suit was pending while the sale was done. If the sale has happened then it can certainly be challenged by the legatees who are actually entitled to the property under the WillQuestion 6/10 -Who else in totality are necessary to be made parties other than 2 real heirs.
all those who are part of the family settlement agreement and the persons who made these parties execute the agreement in total defiance to the wishes of the testator in his Will. The purchasers are also necessary parties or proper partiesQuestion 7/11-If a beneficiary in the Will challenges the Probate process of the Will and his challenge fails, the will is proved valid. Will then the no-contest clause of the Will come in to play and will prevent him from receiving the inheritance left to him in the Will.
Ans: Yes, Absolutely
if the legatee challenges the Will then in case the Will is duly proved, then nevertheless the contesting legatee has to be paid. However if the testator has incorporated a no contest clause in the Will, then on the legatee challenging the Will, such legatee will then be disentitled to claim any legacy under the Will, as per the wishes of the testatorRegards,
Mahesh Kumar-[deleted]
Background of the matter- Please use the same back ground as given for the original or regular questionsQuestion1/1-If someone (As described above) has sold the property during the pendency of the probate case, then can the relief be sought by filing a separate suit seeking cancellation of the sale deed and for possession or it is not necessary ?
to avoid multiplicity of proceedings, the buyers can be made parties in the existing suitAns-Yes, but it needs to be filed for cancellation only after getting Probate order after execution of the Will [dont agree with this advise]
Question 9/9-If a property is under litigation in 2 cases then will the Lis Pendens under section 52 of transfer of Land act will apply automatically or a separate Lis Pendens suit would need to be filed on this property?
Ans-It will apply automatically. No need for separate case [this is correct. You can also lodge lispendens with the Sub Registrar for the benefit of members of public who may be cautioned against dealing with a disputed property]
Question 12/12-Does the settlement/agreement described above has legal value it was done before any case on this property and also it violated legal aspect which says that Testator`s desire has paramount importance and cannot be violated or ignored?
i do not know if the legatees were also parties to this agreement. If they were not then they can certainly challenge this agreement since their right got affected by itAns: This is completely on the discretion of the court to decide because. when there is a WILL and the person making the WILL is dead, in 1990, it was the duty of the executor to execute the WILL right away.
Your grandfather died in 1990 and probate was filed in 2019 after around 29 years. Law does not support those who sleep and slumber. Hence both sides can make strong arguments.
Was there a legal heir certificate issued?
The above clarification is up to to the point.
