The remedy is to seek injunction and not declaration if you apprehend that the property owned by you may be sold. You are at liberty to sell your house to anyone you desire if there is no injunction issued by the court against you. There are no fetters on the right of the absolute title holder, except a stay order passed by the competent court, to sell his property.
Unregistered WILL after registered WILL
My father made a registered WILL in 2003 giving full right (including right to sale)to my mother and after her to 2 sons. In 2009 one month before his death he made second unregistered WILL giving 1 house to his wife and other to his younger son (Me). Now Mother and elder brother have shaken hands and trying to sell house of my share also by following previous registered WILL. Though I have filed declaration suit and also applied for stay order but opponents are running too fast and in a week's time they are going to sell my home also by following previous registered WILL. To escape the situation Can I sell house of my share & possession (since 2004) using unregistered WILL or it will be illegal?
Asked 7 years ago in Property Law
Religion: Hindu
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7 Answers
1)second will made by father before his death would supersede earlier will
2) previous regd will stands revoked
3) since you have already filed suit and made stay application you can seek ad interim stay restraining mother from selling the house
4)dont sell your house on basis of un regd will
5) also apply for probate of father will of 2009
Hi
It is not advisable to sell the house as you have already approached court for a declaration.you should get an interim injunction during the pendancy of the suit.
You should have got an interim stay on emergency to stop the sale.
If you have not initiated a stay , file petition to get a stay ask for an interim injunction not to alienate the property till the final order
1. Neither your mother nor you can sell any of your father's properties without taking the grant of probate of the will from the Court, if probate is mandatory for execution of wills in your area unlike Delhi,
2. First of all file an application for the grant of probate of the unregistered will and send notice to all other legal heirs through Court,
3. It is not mandatory to register a will and the last will prevails upon all earlier will whether registered or unregistered,
4. In view of the above the last unregistered will of your father should be given effect of unless the other legal heirs contest the same and prove with evidence that the last will submitted by you is invalid for whatsoever reason.
you should immediately file a probate petition before the district judge court. it is settled law that only last will of the maker is executed.
no need to file declaration suit because your share in the property is based upon the will and that will is still not executed by probate order of the court. in the eyes of law no one has taken right in the property. a will cannot be executed merely on the death of the maker. its probate is necessary.
Any Will which has been made subsequent to the previous will shall be valid.
i.e., the latest will shall overtake the previous one.
The existing will shall automatically stand cancelled upon execution o a new will by the testator.
If they are trying to sell the property based on the previous will, you should obtain injunction against them, if they still do that, then they will be held for contempt of court.
Simultaneously you may publish the matter in a local newspaper warning the prospective buyers about the fraudulent sale that shall happen based on an invalid will and to be vigilant while attempting to buy the same.
