• My brother done a registered will to my parents name for ancestral undivided property

Dear Sir, My elder(unmarried) brother done a registered will to my parent name for undivided of his share from ancestral property in 2018. Now he no more and died in 2019. But partition suit already filed in court and still proceeding are going from 2014. Is my parent gets his share by will? please give details
Asked 4 years ago in Property Law
Religion: Hindu

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21 Answers

There is no bar to brother  executing will for his undivided share in property during pendency of partition suit 

2) parents should get brothers share as per his will 

 

3) I presume will is attested by 2 witnesses 

 

4) it is advisable to apply for probate of will although probate is not mandatory 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Partition suits take 15 years to be disposed of 

 

2) if parents are elderly they can apply for expedited hearing of suit 

 

3)parents can execute will for their share in ancestral property in your name 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

If the property is under dispute before the court of law in a partition suit,  the question of enforcing the Will shall not arise. 

It shall be kept in abeyance till the disposal of suit for partition is decided by the court of law where the current suit is pending. 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Yes if there is a will then it will be decided as per his will. His share will be devolved as per his will to parents

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Your parents can make a Will bequeathing their share in the property or the property to which they have clear and marketable title. 

However if the property is under dispute before court of law no encumbrance or alienation of the concerned property can be done or it shall be legally valid. 

You can decide about it after understanding the legal consequences of the intended acts.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. YES .... Parents can make conditional WILL for their probable share in Ancestral Property in your favor, for which the legal enforceablity would depend on the "Partition Suit".

2. Instead of beating around the bush and IF all parties to the Partition Suit are amicable, THEN Execute a proper Stamp Duty paid & Registered "Family Settlement Deed", by mutual signatures of all the eligible residual legal heirs, wherein the ancestral property can be distributed amongst themselves, in the ratio decided by mutual consent terms & conditions.  After this submit this Deed in Court and withdraw the Partition Suit by following due procedures of law.

3. Above process shall confer absolute Title-Ownership of ratio of ancestral property to the Legal Heirs, for futuristic purpose of Sale /Gift/ Lease /Mortgage /Donate /Whatever ....

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. There is no rule that a WILL be registered. It's optional. Even unregistered WILL will also have the same effect as that of a registered WILL.

2. On the testate death of your brother, his share in the ancestral property would devolve to your parents, as desired by your deceased brother through WILL.

3.  Voluntarily, your parents can execute a WILL, whether a registered one or not, desiring as to the devolvement of their share in the ancestral property to the beneficiaries of their choice. Hence your parents can voluntarily execute a WILL to the beneficiaries in respect of the property.

Shashidhar S. Sastry
Advocate, Bangalore
5068 Answers
314 Consultations

5.0 on 5.0

The share of ancestral property which your brother should get will now go to your parents. 

 

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

Yes your parents can give you their share of the ancestral property by will.

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

1. If taking of probate of the Will is compulsory then ask your parent to take Probate first.

2. Now it is not clear what is the partition suit all about.

3. The share given by the court to your deceased brother in the partition suit would be bequeathed to your parents on the basis of the Will

4. In other words your parents would get from their elder brother only that much which would be determined by the civil court.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Yes parents can make the will in your favour if there is no Stay over the property 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Dear Sir,

The parents can get the share of brother by way of will and the then write a WILL in your favour. The partition suit has other relevnace and not a bar in way of WILL.  

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

If no stay from court than yes.

And parents can execute WILL in your favor. Will will be effective after paretns demise and operative after order of court. 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. Partition suit has been filed by whom and qua which property?

2. The share of your brother has devolved according to his will.

3. Your parents can will to you the share which they inherited from their son.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Hi, for ancestral property he can make a will to an extent of his share. Until the share is determined by the Court your father will not get the property. Your father may execute the will in your  favor  in respect  of their share.

Pradeep Bharathipura
Advocate, Bangalore
5604 Answers
335 Consultations

4.5 on 5.0

Upon death of the executor the Will can into light.

Your brother can bequeath his share to any one, as such, his share bequeathed to your parents is valid.

Thus, parents are entitled to his share which will pass through Will.

Make sure that, you have cordial relations with the witnesses who witnessed the Will, so as to give evidence.

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

Reply to your second post:

Yes, they can. 

Make sure to take witnesses who will witness the execution of Will by your parents bequeathing their share in your name.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

The application for a probate has to be made to the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through a lawyer

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

yes, your parents can execute reg will in your favour. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Dear Sir,

Yes, under the Will your parents get share of your deceased brother and now your father  can bequeath  his undivided  share and the share received from his deceased son to you.

You can rely upon the following circular and get judgment as early as possible. 

=============================================================

Karnataka Case Flow Management Rules

http://www.judicialreforms.in/forums/showthread.php?tid=63

SIMILAR RULES ARE FRAMED BY ALL THE HIGH COURTS
the Karnataka High Court has launched the Case Flow Management system.

The Karnataka (Case Flow Management in Subordinate Courts) Rules 2005, as it is called, was gazetted by the State Government almost two years ago. Subsequently, the High Court framed the rules applicable to all suits and civil proceedings before the subordinate civil courts and tribunals.


It divides cases into four tracks. 

Disposal in 9 months:

In Track 1 the High court has included suits on maintenance, child custody, appointment of guardians and wards, visiting rights, letters of administration, succession certificate, recovery of rent and permanent injunction. All cases under this category will have to be disposed of within nine months.

Disposal in 12 months:

In Track 2, cases on execution, divorce and ejectment will have to be disposed of within 12 months.


Disposal in 24 months:
Cases to be disposed in 24 months relate to partition, declaration, specific performance, possession, mandatory injunction, appeals, damages, easements, trade marks, copy rights, patents and intellectual property rights. 

Disposal in 24 months:

Cases that are not in any of the three categories are included in the fourth category and they too have to be disposed of in 24 months. The presiding officer, however, has the right to dispose of the case earlier. 

The rules prescribe a mandatory time limit for various court procedures such as issue of summons/notices. Proceedings shall indicate a maximum of 30 days for filing statement or objection from the date of service.

The procedures for IAs and interim orders and reference to mediation, conciliation or Lok Adalat, appointment of commissioners for recording of evidence, proceedings for perjury, adjournment and even first appeals have also been spelt out.

http://www.judicialreforms.in/forums/showthread.php?tid=63

 

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

Yes parents will be owner of undivided share of your elder brother as per his will. 

Yes your parents can make registered will making your beneficiary of their share from ancestral properties.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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