Pls help ...My father and mother tried committed suicide due to my elder sister doing love marriage wherein I lost my father in Jul 2005 ,but able to save my mother .Later my mother died in 2008 leaving an unregistered will in my favor .Mutation was done by me by providing affidavit of only legal hier of the property in 2010 ,this was done without will as in will my mother accused my sister for her and my father death .My sister didn't came during my father and mother funeral .Now she has claimed and managed to get her name registered from SDM court in property ,wherein SDM has overlooked the will from my mother presented by me .Kindly suggest doing the needful as I am helpless that even though will is there her name is registered .I am in need of money and unable to sell it
1.Was your mother the owner of the property in question? If yes, then alone she had the competence to make the will.
2. You have to file a suit for declaration of your absolute title to the property on the basis of will of your mother and also seek a decree of mandatory injunction to direct SDM to cancel the mutation entries in favour of your sister.
First file an application for probate of will either in district court or high court.
After probate file application in sdm court for cancellation of registration of the property in the name of your sister.
1. consult any prominent property lawyer along with the relevant documents to get a proper advise,
2. if the property was ancestral, your sister can claim her share, but, if the property was self acquired by your father, and will is in your favour she can not take any share
3. you should have probated the will
Was your mother absolute owner of property?
what was source of income for mother buying property ?
3) apply for probate of mother will .enclose affidavit of attesting witness
4) probate is judicial proof that will is genuine
5) notice would be issued to your sister
6) if your sister objects it would get converted into testamentary suit
Actually you should have probate this WILL from court and take the order from court and remove your sister name from property.
Firstly, confirm whether your mother had funds to purchase the property under dispute and whether she is owner of the said property.
If yes to above
You get the same probated.
Followed by issuing notice to your sister, if she fails to respond, you can file suit for declaration.
You need to file suit for cancellation of the said registration before civil court
See daughter has right in the fathers property as father made no will, as far as mother's will for her property is concerned you can contest same and can file appeal of the order. Though she has right in fathers property and you cannot deny same in this set of facts.
1. File a Civil Court suit for declaration, based on WILL document of mother and seek directions to quash the SDM order and retain only your name mutated in the property records.
Who acquired this property ? Father or mother ? or jointly ?
File appeal agasint order of SDM.
If property belongs to father than on his death, property inherited by 1/3rd share each and mother can bequeath her 1/3rd share only.
So sister have 1/3rd share.
If your mother is abosulte owner of said property then her unregistered will would be valid. You can apply for probate of will bfore jurisdictional court .
1. When you got the property mutated on your name at that time you should have executed the will of your mother.
2. As you have given affidavit that you are only legal heir of your parents so you have committed fraud by giving false affidavit
3. validity of will cannot be considered as you have not presented at time when you mutated the property.
4. Now if you want to sell the flat then either you should appeal against order of SDM or file partition suit for separation of property from your sisters share.
Once you have mutated the property on yor name then the inclusion of her name in the property is invalid.
you have to give an objection to this effect by producing the documentary evidences to the SDM and request for cancellation of her name and removal of the same from the property.
If the SDM is not cooperating then you may have to approach court for legal remedies accordingly.
The property belonged to your father and after his death you and your mother and your sister had a share in the property. therefore she does have a share. Therefore a division of property is required.
