• Property in mothers name purchased from funds of elder son and father

Property consisting of a plot of land and building constructed afterwards on that , purchased from the funds of Father and elder son in the name of mother 40 years back. A registered will was executed 20 year back jointly by father and mother distributing the property in the name of three sons (including one step son and excluding daughters)Now mother died recently. and father is still alive. Now the question is 1) Whether Noc is required from father and daughters for mutation of property. 2) Whether mutation of property can be done one by one if one of the member is not available and does not want mutation in his name at present. 3) whether registered will can be challenged in court after death of mother. 4) whether father can alter the joint will after the death of mother.
Asked 18 days ago in Property Law
Religion: Hindu

10 answers received in 1 day.

Lawyers are available now to answer your questions.

16 Answers

  1. NoC should be required from father and daughters for mutation if you are not filing for probate and proving the will. You should consult the concerned tehsildar to know about the requisite documents for mutation.
  2. Even if that family member is unavailable or uninterested in mutation but the mutation will be done including his name as well (as per the joint will), unless he gives up his rights and interest completely in the property. 
  3. Yes, even registered will can be challenged in the court of law by any interested party who doubts the genuineness of the will. So, the objections can be raised against the registered will also.
  4. Generally, a surviving testator can't alter the joint mutual will as it is irrevocable. In your case, your father (surviving testator) may not alter the joint will pertaining to the property solely belonging to your mother, whose last desire is as per the will. 
  5. Probate is not a necessary mandate but it is always advised that to get it probate done to avoid any future disputes or claims pertaining to same.

Abhinav Srivastava
Advocate, New Delhi
22 Answers

5.0 on 5.0

Notice would be issued to legal heirs 

 

2) if daughters object to mutation of property then you will have to apply for probate of will 

 

3) probate is judicial proof that will is genuine 

 

4) daughters can object to grant to probate 

 

5) testamentary petition would be converted into suit and you have to prove mother executed the will by testimony of attesting witnesses 

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

Probate is not mandatory but advisable to apply for probate 

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

1. If Probate is mandatory in your state then without this nothing more is possible. 

2. Mutation is to be done as per names of beneficiaries of Will.

3. Yes

4. Will can be made several times during lifetime of the Testator. 

Devajyoti Barman
Advocate, Kolkata
22341 Answers
343 Consultations

5.0 on 5.0

Property is purchased by father and son therefore property is now ancestral property which  cannot be transferred through will of any of the legal hairs. It will devolve as per law applicable to ancestral property ie. equal share to all legal heirs including daughters. If all are having no objection to transfer the same in the name of one legal heir, it can be done.

  1. NOC is required from all legal heirs.
  2. Without NOC of all mutation cannot be done.
  3. A registered will can be challenged seeking declaration that the will is invalid.
  4. Property having acquired ancestral will cannot be executed by father.

 

Ravi Shinde
Advocate, Hyderabad
797 Answers
7 Consultations

5.0 on 5.0

Dear Querist

My opinion on your queries are as under: -

 

 1) Whether Noc is required from father and daughters for mutation of property.
Opinion: - There is no requirement of NOC from anybody, the property can be devided as per the Will of the owner of the property, as per the information provided by you the owner of the property was your mother hence the property will be devided as per the Will of the owner.

2) Whether mutation of property can be done one by one if one of the member is not available and does not want mutation in his name at present.
Opinion: - Mutation can be filed by any of the beneficiries and there is no requirement for all the parties for the same.

3) whether registered will can be challenged in court after death of mother.
Opinion: - Yes, it can be challenged by the other beneficaries who may be get any share from the property.

4) whether father can alter the joint will after the death of mother
Opinion: - No, he cannot.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5976 Answers
282 Consultations

4.9 on 5.0

1. A joint will can be revoked at any time during the lifetime of the testators or after the death of one of the testator.

joint will lets the will-makers name who will get their property and assets after they die. ... After one spouse has died, all the couple's property will be left to the surviving spouse; and.

After the surviving spouse dies, the remaining property will be left to the couple's children.

Typically, a joint will provides that:

  • when one spouse dies, the survivor will inherit everything, and
  • when the second spouse dies, everything will go to the children.

 

 

2. Mutation of property can be done only after the Will shall become enforceable in law.

Once the Will becomes enforceable, then the beneficiaries have to apply for mutation together and not one by one.

3. Yes, it can be challenged, hence it is advisable that the Will may be probated when it becomes eligible for enforcement.

4. Most joint wills also contains a provision stating that neither spouse can change or revoke the will alone—which means that the will can’t be changed after the first spouse dies. A conventional will is always revocable. But a joint will is really a binding legal contract, which cannot be revoked or changed after one spouse has died.

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

If there is no cooperation among the beneficiaries and the legal heirs and if the legal heirs do not give NOC or become a hindrance to enforce the Will, then it would become pertinent to obtain probate of Will. 

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

Dear Sir,

1) Yes NOC will be required from all legal heirs including daughters and father.

2) Mutation will require NOCS and will be done as per the terms stated I the will.

3) Registered will can be challenged in court, you will be required to get a probate of the will by court.

4) Father cannot alter the last will of the mother, even if it is a joint will.

Thank you

  • For more assistance, you can book a consultation with me.
  • If you like my answer, please give a good rating and leave a review

 

Anik Miu
Advocate, Bangalore
1125 Answers
10 Consultations

5.0 on 5.0

1. Yes, after the death of mother , now that property would be devolved upon all her legal heirs i.e. her husband if alive , and children equally .

- Hence, NOC is required from all other legal heirs for mutation of the property . 

- However, as there is registered WILL left by the mother , then the beneficiaries should apply for getting probate order from the court. 

2. There may be requirement for Legal heir certificate at the time of mutation of the property 

3. Yes, it can be challenged in the absence of Probate order. 

4. No, father cannot alter the WILL 

Mohammed Shahzad
Advocate, Delhi
6719 Answers
71 Consultations

5.0 on 5.0

1. the property is in the name of the mother. It was purchased benami in her name. The true owners are the father and the elder son. As mother was not the true owner, she could not make any Will of the property, much less any joint Will

2. thus in my view the father, who is still alive, has to file a suit alongwith the suit for a declaration that they are the true owners of the property and the legal heirs of the mother [other than the father and the elder son] have no right in the property

3. mutation cannot be done in parts. All the legal heirs have to give noc and these noc are to be submitted to the revenue department for mutation

4. a will even if its registered can be challenged if its not executed and attested as per law

5. in case of a joint Will, the living testator cannot modify the Will after demise of the deceased testator since joint Wills are in the nature of contract between the two testators 

Yusuf Rampurawala
Advocate, Mumbai
6157 Answers
50 Consultations

5.0 on 5.0

Probate is not mandatory in Uttarakhand 

 

probate is necessary in case of dispute among legal heirs 

 

when you apply for mutation notice is issued to all legal heirs 

 

if any legal heir objects then apply for probate 

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

You have not given the full judgment.

You have given the opinions of the advocates appearing on both the sides, what is the court judgment based on the arguments presented by the advocates?

joint will lets the will-makers name who will get their property and assets after they die. ... After one spouse has died, all the couple's property will be left to the surviving spouse; and.

After the surviving spouse dies, the remaining property will be left to the couple's children.

If the high court has passed an order that the NOC is not required from legal heirs, then it is a court order which has to be obeyed by the revenue authorities concerned for approving the application seeking mutation of property applied by the beneficiary of the Will. 

The high court orders based on the case before it and not a blanket order.

you may proceed accordingly on the basis of the orders passed by high court in your case instead of creating more and more confusion and controversies over the subject which is a matter of subjudice. 

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

Dear Querist

This does not apply in your case, in the case mentioned by you there are two wills in which

The husband and wife therein had on the same day executed separate Wills, with respect to their separate assets as well as with respect to assets jointly held by them, and on identical terms, appointing each other and certain others as executors of their respective Wills. Under the said Wills, each had bequeathed their properties to the other and thereafter to charitable trusts. It was held that (a) a Will, by its very nature is revocable; it is the last desire of the testator; till his last breath, he will have a final say;
the latter Will revoking the earlier Will, will be probated; (b) despite the existence of a mutual Will, the representative under the latter Will will take the property; he however takes the property subject to the terms of the mutual Will; (c) whether there exists any agreement enforceable either in equity or by way of a suit for specific performance, will have to be considered only in the event the probate is granted and noot prior thereto; (d) even when there is such an agreement and one party has died after departing
from it or revoking or altering the Will, the survivor having notice of the breach, cannot claim to have the latter Will set aside since the notice gives him the chance of altering the Will as regards his own property; the death of the deceased party is sufficient notice for this purpose; (e) if however the deceased has stood by the agreement and not revoked or altered his Will, the survivor is bound by it and although probate will be granted of a latter Will made by the survivor in breach of the agreement, since a Court of probate is only concerned with the last Will, the personal representative of the survivor nevertheless holds the estate in trust, to give effect to the provisions of thejoint Will or mutual Wills; (f) mutual Wills may be contained in a joint Will or in separate documents; (g) if the survivor, whether or not, after taking an actual benefit under the arrangement, alters his Will, his personal representative takes the property which is subject to the agreement, upon trust to perform the contract; (h) a joint mutual Will, becomes irrevocable on the death of one of the testators, if the survivor has received benefits under the mutual Will and there need not be a specific contract prohibiting revocation when the arrangement takes the form of two simultaneous Wills but one single document; and, (i) if one single document is executed by both the brothers using the expressions “our property”, “our present wishes”, “our  Will” and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent.

 

 

So in your case, this judgment will not help.

 

The property shall be divided as per the terms and conditions of the Will and not otherwise until and unless the Will, be declared null and void by the Hon'ble Court.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5976 Answers
282 Consultations

4.9 on 5.0

- Probate is need only when there is dispute amongst the legal heirs or the beneficiaries whose name is mentioned in the WILL. 

- Further , the said WILL is valid and acceptable at the time of mutation of the property in the name of beneficiaries , and no NOC is needed from other legal heirs whose names are not mentioned in the WILL . 

Mohammed Shahzad
Advocate, Delhi
6719 Answers
71 Consultations

5.0 on 5.0

ye probate is good for proving genuiness of the said property and for future title and sale

Prashant Nayak
Advocate, Mumbai
23361 Answers
49 Consultations

4.4 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer