Supreme Court judgement does not apply in your case. As properties are self acquired properties of father hence he had every right to bequeath his property which he rightlt did by executing WILL in 1995. In case of WILL law is very liberal and open and so as such there is no requirement of registration of WILL. In the light of WILL daughters donot have any right nor can take shelter of SC case which is otherwise not applicable in the case. Apply for probate of WILL. Property shall be divided among three sobs and if any son has expired then his share shall devolve to his class-1 legal heir.
Property rights of daughters in the presence of unregistered will in Karnataka
Background: I am currently a NRI residing in USA with OCI status and would like to seek your service relating to the property rights of daughters We are a family of 7 (3 sons & 4 daughters). I am the 3rd son. All of us are now married and living with our spouses. My father passed away in 2000. My eldest brother (survived by his wife, son & a daughter) and my mother, both passed away in 2022. All my siblings are married and well settled with their family in Bangalore. In 1995, my dad wrote a Will, in which he allocated his self-acquired property (in Jayanagar, Bangalore) ONLY to his 3 sons and nothing to my sisters. The Will was drawn and executed by my dad, signed by an Advocate & Notary in Bangalore, along with 2 other witnesses in January 1995; None of the witnesses or the Advocate are currently Alive. The Will was never registered. The Khata is still in my father’s name (not yet transferred to our names). We do not have any legal heir certificate. Questions: During the initial stages of discussion to sell the property, my sisters are now asking for equal claim in the property, quoting the 2020 Supreme Court decision on property rights of daughters. Since in our case, we have our father’s Will clearly allocating his property only to his 3 SONS (33%, 37%, 30% respectively) 1. Will the daughters have any rights to the property per the recent Supreme Court Ruling? a. If response to Question 1 is NO, can the sisters still contest this in the courts? If they choose to do so, should the brothers also be part of this case and seek legal representation? b. If response to Question 1 is YES, should it be shared equally among all siblings (including sisters)? 2. Given this scenario is the Probate of Will recommended a. who should initiate it? b. What could be the potential outcome, given this scenario 3. Without the family going to the court, is mediating this through a litigator an option? a. If so, can you recommend any mediator(arbitrator) services in Bangalore Approximate charges of legal services for the above?
Asked 2 years ago in Property Law
Religion: Hindu
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8 Answers
1. Your sisters cannot claim any share in the property as a right because it is yor father's property and he had transferred his self acquired property by a testamentary disposition, hence it is not an intestate death, therefore your daughters cannot claim any share in the property as a right.
The probate of Will would be insisted if the sisters do not agree to give NOC to enable you all to get the property records transferred to the names of the beneficiaries of the Will.
a. Any one or all the beneficiaries can initiate the process to obtain grant of probate of Will.
b. The petitioner has to prove the Will before court with the witnesses deposing the evidence.
3. If they do not agree for mediation through family members source or if they insist on getting their shares then you have no option than to approach court with a petition for probate.
a. You have to look for one yourself.
According to the Supreme Court ruling in 2020, daughters have equal rights as sons in the ancestral property of their father, even if he died before the Hindu Succession (Amendment) Act, 2005 came into force. However, this ruling applies only to coparcenary property, which is the property inherited by a Hindu male from his father, grandfather or great-grandfather. Self-acquired property, which is the property acquired by a Hindu male by his own efforts or resources, is not coparcenary property and does not fall under the ambit of this ruling.
In your case, since your father’s property in Jayanagar, Bangalore was his self-acquired property and not ancestral property, the Supreme Court ruling does not affect your sisters’ rights to it. Your father had the absolute right to dispose of his self-acquired property by a will according to his wishes. Therefore, your sisters do not have any legal claim to the property as per the will made by your father in 1995.
However, this does not mean that your sisters cannot challenge the validity of the will in a court of law. They can file a suit for declaration and cancellation of the will on various grounds such as fraud, coercion, undue influence, forgery, lack of testamentary capacity or intention, improper execution or attestation, revocation or alteration of the will etc. If they choose to do so, you and your brothers will have to defend the will and prove its genuineness and validity. You will also have to seek legal representation from a lawyer who specializes in property and succession matters.
Given this scenario, it is advisable to obtain probate of the will from a competent court. Probate is a legal process that verifies and certifies the authenticity and validity of a will under the seal of the court. Probate can be granted only to the executor appointed by the will or his legal representative. In your case, since you are one of the executors named in the will, you can apply for probate along with your brothers. The process of obtaining probate involves filing a petition in the court along with the original will and other documents such as death certificate of the testator, consent letters from other executors or beneficiaries, affidavit of witnesses etc. The court will issue notices to all the legal heirs of the testator and also publish a citation in a newspaper inviting objections from anyone who may have an interest in the estate. If there are no objections or if they are dismissed by the court, the court will grant probate after verifying the documents and evidence. The probate will act as conclusive proof of the validity of the will and prevent any future disputes or litigation over the property.
Without going to court, another option is to mediate this matter through a lawyer or an arbitrator who can help you and your sisters reach an amicable settlement. Mediation is a voluntary and confidential process where a neutral third party facilitates communication and negotiation between the parties and helps them resolve their differences without imposing any decision on them. Mediation can save time, money and emotional stress involved in litigation and also preserve family harmony. However, mediation requires consent and cooperation from all the parties involved. If any party is unwilling or unable to participate in mediation or if mediation fails to produce a satisfactory outcome, then litigation may be inevitable.
Daughters would not have any rights on property
2) it is necessary to apply for probate of will
3) probate is judicial proof that will is genuine
4) executor of will should apply for probate . If it is contested by sisters it would be converted into testamentary suit
5) mediation is an option .
6) consult a local lawyer
1. As per law , your father was having his right to transfer his self acquired property by writing a Will to his sons only and the consent of daughters was not needed for the same.
- Further, the registration of a Will is not mandatory , if it was written in the presence of two witlessness.
- You can file Probate petition before the court for getting the said Will validated
- Yes, sister can file a suit for partition after refusing the said Will against the sons , however she will have to prove her case against the said Will.
2. Yes
- Any beneficiary can file the petition
3. You can settle the matter out of the court with the sisters
1. No.
a. Sisters' can still contest this in the jurisdictional Court , then the brothers would also be part of this case and have to seek legal representation.
b. Since my answer to Question 1 is no, the property will devolve to all 3 sons as desired in their father's WILL. In case of deceased son, his widow, son and daughter are collectively entitled to 1/3rd share.
2. Probate of WILL is optional and not compulsory in Karnataka. Registration of WILL is optional and not compulsory. Even an unregistered WILL shall have the same legal validity as that of a registered WILL.
a. Any of the siblings can initiate it.
b. Since I haven't perused the WILL, based on your narration, if it's a valid WILL, then it may be upheld.
3. Without going to the Court, the family collectively can come to a settlement amicably by executing Family Settlement Deed.
Dear Client
Supreme Court Ruling on Property Rights of Daughters:
The Supreme Court of India ruled that daughters have equal rights in ancestral property. However, your situation involves self-acquired property and a will executed by your father, which allocates the property to his sons. Generally, self-acquired property can be disposed of by the owner as per their wishes through a valid will.
a. If the will clearly allocates the property to his sons, it may not be subject to the 2020 Supreme Court ruling on daughters' rights in ancestral property. However, legal interpretations can vary, and your sisters may choose to contest this in court.
b. If your sisters contest the will, it's advisable for the brothers to seek legal representation to protect their interests and defend the validity of the will.
Probate of Will:
In India, the probate of a will is not mandatory but can be beneficial for establishing the validity of the will. Whether it is recommended depends on various factors, including local laws and the circumstances surrounding the will.
a. Any interested party can initiate the probate process. Typically, the executor mentioned in the will or one of the beneficiaries does this.
b. The outcome of the probate process depends on whether the court finds the will valid. If the will is found valid, it will be legally recognized and can be executed according to its terms.
Mediation or Arbitration:
Mediation or arbitration can be an alternative to litigation if all parties involved are willing to negotiate and reach a settlement. It's a less adversarial approach and can save time and costs.
a. Yes, mediation through a qualified mediator or arbitrator is an option. However, all parties must agree to participate in the process.
b. I cannot recommend specific mediators or arbitrators in Bangalore. You may need to research and consult with legal professionals or organizations that offer mediation services to find a suitable mediator.
Regarding the approximate charges for legal services, it varies widely depending on the complexity of the case, the location, and the lawyer's fees. You should consult with a local attorney in Bangalore to get a more accurate estimate based on your specific circumstances.
Yes daughters will have rights and equal share. It’s better a settlement is done here
