• Claiming property on certified copy of will, not showing original

Hello All, 

My father in law, died on 23rd Feb, 2014. My wife is the only daughter, and my mother in law are his legal heirs. Following his death after about a month, his sisters started making claims on all of his property and bank accounts on the basis of an alleged will. They said will is registered in SRO Kannur. However, they are not showing the original will anywhere. Sometimes they say its lost, and sometimes they say its with us. 

So, we went ahead and filed an injunction suit & it was granted. They too filed a suit, but, didnt get injunction, which my lawyer told is because of the lack of original will.  

However, even before we came to know about the whole WILL thing, they managed to transfer a property into their name, and further to their sons name. So, right now, one of the properties title is in their son's name. We filed for injunction and it was granted for trespassing and committing waste. 

My question is:  
1. Right now, they are trying to sell the property.  I thought when there was a Civil Case on a property you cannot sell it, but, people at the SRO say they still can. I need to stop them again transferring the property, to an unsuspecting person and avoid all complications. 

What should be my plan of action? 

2. Father in law has some Fixed Deposits in his name. The nominee is my mother in law. However, bank is not releasing the funds. Even though they have filed a suit for injunction, there is no court order against releasing the funds till date. We filed a consumer case, but, the opposite party is delaying it unnecessarily on the hope of getting a court order some day. 

What should be my course of action in this case?
Asked 8 months ago in Property Law from Kannur, Kerala
Religion: Hindu
1) you have to move court to set aside transfer of property made by sistrs in their name and the subsequent transfers


2)  also seek injunction restraining sale of property 

2) nominee is only trustee for legal hers .

3) obtain succession certificate from court in your MIL name for FD . your wife can furnish her NOC and file consent affidavit in this regard 
Ajay Sethi
Advocate, Mumbai
23389 Answers
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1) if original will has been lost can apply for probate on basis of certified copy of will 

2) it has to be proved that FIL had executed will in presence of 2 witnesses 

3) you can oppose grant of probate . 

4) it would be converted into testamentary suit and take around 10 years to be disposed of 
Ajay Sethi
Advocate, Mumbai
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1229 Consultations
5.0 on 5.0
1. Mere pendency of a civil case does not stop someone from selling the party. There has to be a stay order passed by the court. Seek injunction immediately if they are trying to sell the property.

2. You require a Succession Certificate from the court to realise the funds of the deceased. So apply for it to the court on the basis of death certificate of father in law.
Ashish Davessar
Advocate, Jaipur
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The opposite party has the right to contest your petition for grant of SC. If there is a will then the will has to prevail.
Ashish Davessar
Advocate, Jaipur
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450 Consultations
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Hi
1) if the original will is not produced in the court, then there is no defense for the other side. so you will win hands down. no worries at all. 
2) When there is a court case, you cannot sell the suit properties. 
3) Inspite of existence of a court case, if the other side is intending to sell the properties, you need to apply for injunction under Order 39 rule 1 of CPC and ask the court for restraining orders.
4) You should apply for succession certificate. Only the legal heirs will be eligible to get the FD. Actually succession certificate cases will be settled within 3 to 4 months compared to civil suits. Once you win the suit in succession certificate, then civil suit result will also be identical. 
hope this helps. 
Rajgopalan Sripathi
Advocate, Hyderabad
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1. Right now, they are trying to sell the property.  I thought when there was a Civil Case on a property you cannot sell it, but, people at the SRO say they still can. I need to stop them again transferring the property, to an unsuspecting person and avoid all complications. 
What should be my plan of action? 

If you apprehend them to sell the property again to somebody, you should file another application under Order XXXIX rule 1 and 2 seeking injunction to restrain the defendants from further alienating the property or encumbering it any further.  You should implead the SRO as a party and seek relief against him to not to entertain any registered transaction on the property when presented before it.  This order against the SRO will prevent the defendants from selling the property anymore.




2. Father in law has some Fixed Deposits in his name. The nominee is my mother in law. However, bank is not releasing the funds. Even though they have filed a suit for injunction, there is no court order against releasing the funds till date. We filed a consumer case, but, the opposite party is delaying it unnecessarily on the hope of getting a court order some day. 






What should be my course of action in this case?

You should file a succession certificate before court of law, produce the certificate before bank and avail the claim amount.






T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
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2. Yes, will seek injunction restraining sale of property. 

Not only injunction against the defendants but also against the SRO too by impleading him as a necessary party to the injunction application.  This will fetch you the desired relief.



3. If I file for succession certificate, the opposing party will challenge it. 

Let the opposite party object or do anything, you are to concentrate on your purpose to get the succession certificate based on the genuineness alone.  The sisters of your father in law are not successors when your father in law's class I legal heirs are alive.  They have no locus standi to file their objection to this certificate. 






Basically, they have a certified copy of a registered will - NO ORIGINAL. I want to know if they have any case out of it, how will these civil cases end. Would be great to know

The certified copy of the registered will also has to be proved by probating the same before the court.  Until the will is not probated, there is no chance of they laying their hand on to the property.
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
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