My father bought 2acres of agricultural land in the name of his father(my grandfather) in 1996,Mysore. He had to do this as my father didnt have rtc and was a government employee.My grandfather then wrote a will in the name of my father in 1996 with 2 witness and this will is not regsitered and also village accountant somehow got khata made in my fathers name as per some procedure in 1997 itself. Since khata was transferred to my father, my father thought the property transfer is done.Even my grandfather thought the same and they totally forgot about transferring the property throught registration office. My grandfather expired in 2010 and my father's brother came into picture and put partition suit for this land in mysore.During the hearing, the will was brought up but 2 witness didnt turn up for some reason.Judgement came in 2013 to divide the property .Same year Father went to highcourt and got a stay and its still there. Now the 2 witness of will agreed to come and provide witness in our favour.The original will is in Karnataka highcourt as all documents went into high court from lower court(Mysore). Is there chance to proceed to settle the will now and if yes what is the procedure?
Your father should apply for probate of grand father will
2) enclose death certificate of grand father
3) affidavit of one of attesting witnesses
4) notice would be issued to brother
5) if he objects it gets converted into testamentary suit
6) your father has to prove will was executed by grand father
As tge witnesses to the will have turned up there is a strong possibility that you shall regain your property. You must be having documents wherein your father must have paid the money and transferred the land in your grandfather's name. That is also a good evidence which shows that he bought it with his own money and therefore the will should be upheld.
You need to seek remand of matter to trial Court for leading fresh evidence through the witnesses to will. File an application in High Court praying remand to trial Court for decision on the veracity of will as now witnesses are ready to depose. After remand to trial Court file an application for reopening of evidence of defendant and examine the witnesses. As there is no limitation for seeking execution of will your application will be allowed by trial Court. Since the property originally acquired by father it is his self acquired property purchased in the name of grandfather due to absence of RTC and the same is reverted from grandfather to father in which uncle has no right to claim share.
- As per law, registration of WILL is not mandatory , and a hand written WILL with two attesting witnesses is enough
- Further, if the WILL is disputed by other legal heirs , then the person can probate it from the court.
- Hence, your father should apply for getting probate the said WILL .
- However, if the two attesting witnesses will appear for deposing before the court , then the case will be in favour of your father .
Dear sir,
1.Send a legal notice to your brother and tell him about the enforcement of will
2. Institute a probate proceeding and enforce that will. The court will look into the evidence and since you have witnesses to support your claim,the court may grant you the will.
Thank you
Dear Sir,
Now it it is belated stage. But if your advocate make efforts then it may be remanded back to the trial court for limited purpose of recording evidence of both the witnesses which is material evidence to decide the matter.
Or at least file affidavits of both the witnesses before the High Court and it may rely on such affidavit evidence.
It is not mandatory for Will to be registered, hence even unregistered Will is valid.
Since the witnesses are ready to depose evidence before court now, you can get them examined before court and get the Will probated after which the partition suit will stand dismissed.
In the appeal you can file a petition to permit you to present the additional witnesses to prove the Will for getting justice to you.
1. When your grandfather made a will in favour of your father the title to the property transferred to your father on the demise of your grandfather.
2. It seems that your father could not prove the will as the attesting witnesses did not appear in the court for being examined as witnesses.
3. There cannot be a fresh trial now even if the witnesses are ready to appear. Your father has missed the bus.
