Succession certificate is only for movable debts and securities
2) you need to apply for probate of will
3) enclose affidavit of one of attesting witnesses
4) death certificate of testator
Lease Renewal of unregistered Residential plot
My father had purchased a residential plot in 1987 through an unregistered Sale Deed and a WILL. On the basis of a Joint affidavit and Application, the subject plot was transferred to my fathers name in the records of Housing Board. An unregistered lease agreement was also executed between my father and Housing Board. We got NOC from houing board and built a house on the land in 1988 and are in possession since then (33+ years). A few years later my mother and my name was also added in Housing Board records. In 2004, the seller died. When we recently approached Housing Board with death certificate and Will before the expiry of the Lease (with original seller), they refused to extend the lease in our name and asked us to produce a succession certificate saying that we had hidden about the Will all these years. So one option is getting Succession certificate which has some challenges with Legal heirs of Seller coming into picture. We have no clue of their whereabouts. I looked for other options and found 3 more probable solutions to the problem. Please suggest which options are viable and best in this case. Here is the Link to the options - https://docs.google.com/document/d/10b3cYH-Ppq4nDJ2hesopk19fCXsCLgTqXdl7wjk74ls/edit
Asked 3 years ago in Property Law
Religion: Hindu
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
10 Answers
Dear Sir
A succession certificate would not be appropriate in this case as it is meant to realize debts and securities, not land or houses.
Apply to the court for a probate of the will instead
Thank you
- Since there is a WILL by the seller , then you can file a petition before the court for Probate the WILL
- However, a WILL can be written on a simple paper and registration is not mandatory , but this must be written in the presence of two witnesses.
- Hence, if there are two witnesses in the WILL , then a probate can be obtained from the court .
- Further, a Succession certificate or Legal heir certificate cannot declared you as the owner of the property and to produce before the society.
Succession certificate is the best way
There are 2 witnesses in the Will. One of them is dead and whereabouts of the other unknown. Also, in the Probate application, the executor has to mention the names and addresses of the legal heirs of the deceased, so that notice can be issued to them. The names and addresses of the legal heirs are also unknown (I just know the name and district of their village). Can Probate still be obtained without a challenge if we prove that we are peacefully staying in the property for over 33 years and claimant if any should have done it within 12 years (essentially removing need of sending notices to Heirs)? Alternatively, what are the chances like with these options: 1. Getting Unregistered Lease Deed with Housing Board registered under section 53A of TP Act 2. Claiming Title under Adverse Possession as we are in possession of the property for 33 years.
Asked 3 years ago
You can engage a detective agency to trace the legal heirs , witness
2) in probate petition you need to mention details of legal heirs so that notice can be issued to them
3) affidavit of one of attesting witness is must
4) in alternative you can file suit claiming adverse possession
In the given situation, your father can apply for probate of Will alone.
The succession certificate cannot be applied by your father and it has to be applied by the legal heirs/successors in interest of the deceased seller alone.
The unregistered sale deed is also not valid in the eyes of law, however since it is clubbed with physical possession of the property and also since your father is in possession of the property for a period over 12 years, he can file a suit for declaration to declare his title operating the law of adverse possession and also file a suit for specific performance of contract against the legal heirs of the deceased seller along with an application seeking direction to the housing board to permit conversion of this lease hold to freehold property.
There are various legal complications involved in your case.
1. The property was not converted to freehold and it still remains as leasehold proeprty, hence the housing board only has to accord permission to convert the same.
2. The property was purchased by an unregistered sale deed without paying the appropriate stamp duty at the time of purchasing it, hence you may have to pay the applicable stamp duty as on the current value of the property for getting the registered title document to your name.
3. Since the seller has given a Will to yor father's name, the Will should have been probated within 12 years from the date of death of the testator to enforce the Will. It is not known that when the testator died, in that case you may have to file a petition to condone the delay caused to approach court seeking probate for the reasons you rely upon.
4. Since the attesting witnesses are not available and the Will document was not prepared on a registered document, the burden to prove the Will would fall on you, if you are not able to prove the Will, then the probate case may be dismissed.
5. Alternately you can file a suit for declaration of title operating the law of adverse possession on the basis of the documentary evidences in your support to prove your claim
Dear sir,
it would be better if you go for claiming title under adverse possession since it has been 33 years that you are staying peacefully and file for a declaratory suit.
Also, a suit for specific performance of a contract can be filed against the legal heirs of the deceased seller along with an application to the housing board for lease
Thank You
- If one witness untraceable , then it can be proved after producing other witnesses .
- Further, without giving the details of all the legal heirs , Probate cannot be granted.
- Since you are staying in the property for 33 years, then you can claim the ownership of the property after filing a suit for adverse possession.
You can try your option under aforesaid grounds