• Will property

Hi, am new to Kaanoon.
My aunt has executed a WILL on my name, and this a registered WILL.
My aunt is unmarried and died in 2013. The property is a ancestral property. She died suffering from cancer, and since her siblings dint even bother to take care of her, she executed a WILL on my name.
The property was divided by her and her siblings(2 brothers) in 2000, and during this time her father was not alive, he expired in 2009. Also this property division was written on a paper in 2009 and also in 10rs stamp paper. And from then the properties were enjoyed individually. But the said property was not registered at sub register office and now the property is in joint names in RTC. Taking this as advantage, her siblings has filed a case in court asking for partition(OS Suite),equal share among them after the death of my aunt.
Now i have become one of the defendant in the case, as i was allowed to participate in the case. Now i  need to prove that the said property was partitioned earlier and prove my aunt as executed WILL on my name.
Now the question is, the said WILL is valid, or how can i prove that the partition was done earlier as the said property is in joint name of my aunt and her siblings in RTC now.

As i don't have much knowledge of Kaanoon, i have used simple language.

Thanks,
Mahesh
Asked 4 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) you have to file testamentary petition for probate of your aunt will 

2) it has to be proved that wil was executed by your aunt 

3) you have to enclose affidavit of one of attesting witness 

4) if her siblings contest wil it would be converted into suit and both suits would be heard together 

4)deed of partition between aunt and siblings ought to have been stamped  and  registered 

5) unregd deed is inadmissible in evidence 

6) it is admissible only for collateral purposes 
Ajay Sethi
Advocate, Mumbai
23079 Answers
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The validity of the will is to be decided at the trial. The onus to prove that your aunt had bequeathed only that property which became her separate property after the division of property is on you. You have to lead in evidence the deed of partition or any other instrument which can prove that the property was partitioned. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
444 Consultations
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Hi
 The WILL  in your favour is a valid one , the WILL can be proved genuine in the court once you examine the witness and the medical certificate by the doctor stating that your aunt was mentally fit and in good understanding of things
The First Partition can be proved, with documents and witnesses who were present in  first partition
Since the matter is in the court you need to defend it well with witnesses an documents available to disprove their claim
Thresiamma G. Mathew
Advocate, Mumbai
1315 Answers
85 Consultations
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What you wanted to ask you have asked it simply and directly.
You have to prove that your aunt had received her share of the property by a partition by metes and bounds and that during her lifetime she executed a registered WILL bequeathing this property in your favour. 
From what you have stated it is evident that the partition that was effected between your aunt and her two siblings was an unregistered partition, post the partition, your aunt should have gotten the mutation or Katha bifurcated into individual names, if this was not done, you must prove that post partition your aunt was enjoying the property individually.
Since you have been impleaded as a defendant into the Original Suit filed by your aunts siblings, make sure your aunts two siblings are also impleaded into this suit, after they have been impleaded make sure they concur with your written statement that the schedule property now being sought for division has already been partitioned through a unregistered partition deed amongst themselves and that since that day each one of the sharers are enjoying their extent of schedule property individually, separately and exclusively on their own.
This would be adequate.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
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The contents of the registered will bequeathing her share of the property in your favor is a clear evidence to prove that the property was partitioned and hence she transferred it to you by a testamentary disposition. 

The partition on Rs. 10/- stamp paper also can be produced as evidence before court for a valid partition happened.

Just because the mutation of revenue records on individual names was not done, it cannot be said that partition has never happened.

You must put your best efforts through your skilled advocate to prove your grounds and defend your interest in the property based on the merits and evidences in your side.
T Kalaiselvan
Advocate, Vellore
13894 Answers
127 Consultations
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1) Hindu succession amendment act would be applicable of it is ancestral property and father died before 2005 

2) however if partition had take place of all properties it ceases to be ancestral property 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
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Now my question is will the "Hindu Succession (Amendment) Act, 2005" impact on my case, because according to this amendment it says there is no rights to a woman in ancestral property if her father has dies before 2005.

The amendment to HSA in the year 2005 has nothing to do with this.






My aunt father expired in 2000 and after that the partition was made in the village.
As i understood, according to Hindu Succession (Amendment) Act, 2005, a daughter has equal rights to ancestral property her father died after the amendment, that is after 2005. But here in my case the partition was done and was enjoyed individually, this amendment will not effect my case, is what i belive.

Your understanding is right that the property was partitioned properly among the children of her father and she was allotted with her legitimate share.  The fact of partition was not denied by other shareholders. Therefore this has no impact on the subsequent amendment to HSA in2005.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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To prove the disqualification of your aunt you have to in the first place prove that the property is ancestral in her hands. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
444 Consultations
5.0 on 5.0

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