• Will deed

respected sir
                    my friend's grand mother made a  registered will deed of her deceased husband's self acquired property--
schedule A -100 sq.yds to son (S1) and schedule B- 140 sq.yds to S2.total 240 sq.yds.  after 6 years the old building dimensions as mentioned above ,was demolished and both S1 and S2 on mutual understanding constructed their house by making their portions equally i.e. S1 share 120 sq.yds and s2 share 120 sq.yds. there was no written agreement to the same.but it got plan sanction signed by both s1 and S2.my question is:
1. going against the registered will is valid?
2. is S1 now entitled to 100 sq.yds or 120 sq.yds?
3. the sale deed and will deed were in the possession of S2( since S2 obtained bank loan on his name)
4. is it necessary that S1 and S2 both shall make a written agreement to that affect?and
5.if so under what legal provisions can my friend (S1) be protected.
                                          
                                                           thanking you
Asked 2 years ago in Property Law from Hyderabad, Andhra Pradesh
1. Yes, if it is mutual.
2. Though he is entitled to 100 sq.yds only, both of them signed the sanctioned plan so he can not be resisted to use 120 sq yds any more.
3.ok
4. Yes , it will be better if they execute and register a mutual deed of partition with a sketched plan attached thereto.
5. Follow my reply above.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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1) the issue that arises is on death of her husband your grand mother had only 1/3rd share in the property . 

2) she could only dispose her 1/3rd share of the property by will . 

3)in any case  both on demolition have agreed for equal 120 square yard share in the property . 

4) it is better that deed of family settlement  be made by S1 and S2 for division of property on demise of the mother . 

5) the said Deed of Settlement should be duly stamped and registered .
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
5.0 on 5.0
1. Your friend's grandmother can not execute an Will for the entire property of her husbamnd, who died intestate,  in favour of her two sons since she is the owner of only 1/3rd of her deceased husbands property. The remaining 2/3rd of the property is equally shared by her two sons,

2. Inview of the above, the said Will is invalid and son S1 should contest the probate application,

3. However, if the Will of the Grandmother is accepted, then mere signing the building plan for getting sanction does not entitle S1 to claim 120 Yrds of the property in place of 100 yrds willed to him,

4. In the above case, S2 shall have to execute & register a Gift Deed for conveying the title of 20 yrds of the property to S1 to regularise the aggreed division.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. Whether the grand father had left any WILL or did he die intestate?.
2. How did the property devolved only to grand mother?.
3. If the grand father had died intestate, then the grand mother and her children would have equal shares.
4. How many children the grand father and grand mother had?
5. Grand mother should have bequeathed her share of property only and not the entire property belonging to her late husband.
6. Deed of family settlement be made amongst the children of grand mother, on the demise of their mother, and has to be duly stamped and registered.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1. The issue which arises at the outset is, whether after the death of your friend's grand father his grand mother could have made a will respecting the property of her deceased husband. The answer is NO. After the death of grand father his widow along with her children succeeded equally to the property left by her husband in view of the fact that no will thereof was made by him. She could have made a legal instrument of only her share in the property i.e 1/3rd. The remaining property could not have been disposed by her except without the consent of her children who had an equal share therein after the death of their father. Hence, the will made by your friend's grand mother is illegal and can be set aside by court on a legal challenge by any of the sons.

2. Since the will is invalid neither S1 nor S2 is legally obligated to take the agreed share of 100 and 140 sq.yards respectively. They make take recourse to law to cull out their lawful share by filing a suit for partition. 

2. In the event that S1 and S2 desire to partition the property amicably they should enter into a deed of partition whereby and whereunder the property should be divided.
Ashish Davessar
Advocate, Jaipur
18246 Answers
450 Consultations
5.0 on 5.0

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