1) will has to be attested by 2 witnesses
2) will us not valid and sisters can claim equal share in property
3) they can file suit to set aside sale of property by brother
4) probate is not mandatory in Telangana
Will deed
A will deed written in favour of my younger brother in the month of december 2002 by my father who is no more ( passed a way in 2006). Only one witness that too me ( blood relation). My two sisters both aged 58 years planning to claim fathers self acquired property based on recent supreme court judgement -August 11, 2020. Do they get their share? Further, younger brother sold one of the properties listed in the will deed 6 years ago. He has not obtained any probate from court. Can my sisters claim their share in this sold property? Can a will deed be implemented without legal authorization ( probate) like selling the properties, converting in to his name in land pass books / revenue records ? No NOC taken from other family members. How our sisters can fight the property entered in to revenue records by younger brother? thanking you and awaiting legally valid replies.
Asked 5 years ago in Property Law
Religion: Hindu
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27 Answers
Actually, you brother could have applied for probate of WILL in the court. So now ask your brother to get WILL probate first. Later on can solve all problems automatically according to that.
1. The will has no validity in the eyes of law as a will is required to be attested by two attesting witnesses.
2. The recent Supreme Court judgment has seemingly been misunderstood by your sisters as it is in reference to Hindu Succession (Amendment) Act, 2005 which applies to ancestral property only and not self acquired/separate property of a Hindu male.
3. Will is not required to be probated except in the presidency towns.
4. However, the will of your father and subsequent alienation of property by your brother 6 years ago can be successfully challenged by your sisters as will itself is void on account of the fact that it was not attested by 2 attesting witnesses. The remedy in the hands of your sisters is to file a suit for declaration of the will is void and non est and seek partition of their share through metes and bounds.
1. IF will has only one witnesses THEN will becomes null & void, more so specifically since law mandates that WILL should be witnesses by atleast TWO witnesses. This invalid will cannot be acted upon by any authority for any purposes.
2. By virtue of above will being null & void, "ALL" the residual legal heirs (wife & all children) have EQUAL stake /right /claim in Father's property. Probate is not required in Telangana.
3. IF some property was disposed off, THEN the residual legal heirs can claim from the sale proceed amount of the sold property, but now cannot challenge the sale of property.
No, probate is mandatory.
Probate is not mandatory. If your sisters challenge the will they need to prove that the same is void then only they can claim share in the property. Otherwise they don't have any rights in self acquired property
Hi
1) If it is a self acquired property of the father, then Section 8 of Hindu succession Act will apply and in case of Intestate death (without a WILL), then the sons, daughter's are entitled to claim in equal shares by virtue of them being class I legal heirs ever since Hindu succession Act was introduced in the year 1956.
2) So, the daughter's rights to claim a share in self acquired properties has been in force since 1956 and remains unaltered as of date.
3) August 11 2020 judgment pertains to ancestral property and not self acquired properties which is actually a clarification of the 2005 judgment passed by supreme court.
4) So, in your case, since there is a WILL pertaining to self acquired property of the father, the daughter's can challenge the WILL stating
a) that the WILL was obtained by fraud and coercion and
b) that the witness was not aware of the contents of WILL (It happens in 99% of cases where witnesses are not aware of the contents of the WILL).
5) Also, in state of Telangana and Andhra Pradesh, WILL need not be probated but legal heirs should compulsorily provide No Objection Certificate.
6) However, under section 53 A and 54 of Transfer of Property Act a registered settlement deed should be executed by all legal heirs
a) wherein the other legal heirs have provided No objection to property transfer to another legal heir and
b) the WILL should have been annexed to the registered settlement deed.
It looks like this legal mandate is absent in the present case.
So, you should seek partition of properties including the sold property citing fraud (given that in law of limitation, only on grounds of fraud you can challenge the transfer of properties made in the year 2002 and also the sale made by your brother six years ago ).
Hope this information is useful.
Hope this information is useful
As as per your version the property does not exit as on 20 Dec. 2004 nothing could be done now, so please the citation you are citing.
If the property bequeathed in the Will was your father's own and absolute property, then your sisters cannot claim any share in it as a right now.
Since the Will has been accepted as legally valid document, the sale of property on the basis of Will can be considered as legal.
Your sisters claim is not maintainable.
They had share even before the judgement passed by court because WILL was not duly executed and was never valid. It had to be attested by 2 witnesses. To sell the property, probate is not necessary.
Entry in revenue records dose not confer title.
Sisters can claim share in the sale amount and other property by filing partition suit. They have equal share.
- As per law, a person making the Will should have the testamentary capacity, sound disposing mind, knowledge of contents of the Will, Free from undue influence/ fraud/ coercion, and the making of a Will should be a Voluntary act.
- Further the conditions for making a valid WILL are :
1. The Will must be attested by 2 or more witnesses,
2. The witnesses must have seen the testator sign or affix his mark to the Will; or
3. Each witness shall sign the Will in the presence of the testator.
- Further , a Will can be made on a plain paper. No stamp paper , and no notarisation/registration/Probate is required.
- Hence , the said WILL executed by your father in the presence of only witness is not valid , and your sister can seek her share after filing a Partition suit before the court.
- Revenue record is not a title deed of the property .
Sisters cannot really claim the shares now.
The claim of your sisters are not valid and enforceable under the law and even as per recent Judgement of Supreme Court of India.
No worries. Be happy.
will generally isn't valid unless two adult witnesses watch the will-maker sign it.
sisters can file set aside of sale and claim equal share.
When the father has written a will how can anyone lay claim over that property.
The sisters cannot lay claim over the property. Once it has been willed it belongs to the person named in the will. He doesn't have to obtain any noc although he has to obtain probate.
1. If you are sure that the WILL deed executed by your deceased father in your brother's favour contains only one witness signature, then it's not a valid WILL. If it's so, then you can challenge the authenticity of WILL in the jurisdictional competent court.
2. Obtaining Probate of WILL is not mandatory in Hyderabad.
3. Whether you and your siblings get the share depends on the execution of WILL with only one witness's signature ( as per your narration ). If the execution of WILL was witnessed by two persons followed by signatures of 2 persons, then you and your siblings are not entitled to any share.
4. Mutation of name in revenue records would have been effected based on your deceased father's WILL and mutation of name in the revenue records does not vouch for clear title to the property.
5. Get the records, especially WILL executed by your deceased father, verified by a Lawyer, before proceeding further.
pl. clarify The bench said, "the rights can be claimed by the daughter born earlier with effect from September 9, 2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before December 20, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005." thank you all sirs. Broadly understood that the WIIL is invalid and void. does the above passage mean our sisters can claim though the WIIL is written in 2002 ? one more query one agriculture land's survey no. mentioned in the WILL is not reflected in the revenue records in our father's name from 1975 till date. Is this one more point to say WILL not valid. However, this particular land had been in our possession but not registered to my dad . Thanking you all.
Asked 5 years ago
You are referring to the judgment pertaining to the coparcenary rights of daughters in the ancestral property, whereas the property being discussed here is your father's self acquired property.
He had transferred the property by a testamentary disposition to a son of his choice.
This neither can be disputed nor can be challenged in the court of law.
Wrong interpretation of law would not fetch you any benefit nor you can imagine to get the property by confusing others with your own wrong understanding of the law.
The Will signed by you and the scribe is very much valid.
It is not mandatory to get probate of Will.
Also it is not essential to obtain NOC from other legal heirs to enforce the Will.
If the revenue department is fully satisfied about the genuineness of the Will, then there's no problem in transferring the revenue records to the beneficiary of the Will, on submitting an application along with the copies of death certificate and Will.
Therefore the claim made by other legal heirs on wrong presumption of law for a share in the property bequeathed in the Will shall not be maintainable in law.
They may be fighting a losing legal battle.
Further, the testator can bequeath only the property to which he has clear and marketable title.
The bequest made in respect of the property to which the testator has no legally valid title may not be enforceable, but the Will cannot become totally invalid for that reason.
Yes the above status is already clear by SC in latest judgement subject to fulfilment various other conditions stated in the amendment of 2005 except the death of father in 2005
AS THE WILL is invalid they can claim a share.
Thanks.
"If any property disposed of , sold and settled before 20th December 2004 by court order or deed then the order would not apply "
This the meaning of the order of the Supreme Court of India. Clarification of the order.
Land not shown in WILL is not ground for invalidation of WILL .
Will is not valid as it is not attested by 2 witnesses
2) hence the deceased testator died intestate and daughters would have equal share in property
3) it is immaterial when will was written
4) as far as agricultural land is concerned ask seller or his legal heirs to execute registered sale deed in father favour to confer clear and marketable title to property
1. I have already told you that Section 6(1)( of Hindu Succession Act applies to only ancestral property. So I am not inclined to read the passage extracted by you.
2. The will is void but has to be declared so by a court of competent jurisdiction.
Will is invalid so no question of possesion comes. Sisters have share in the property.
No, sisters cannot claim
1. No sister cannot claim any share from property which is transferred to beneficiary by way of will of deceased father.
2. Yes will deed can be executed without getting probate from court.
Yes.
- Yes, as per latest judgement also , you sister having her equal right over the property , even the WILL is written in 2002.