Probate of will
Nitesh Worah
(Querist) 14 March 2015
This query is : Resolved
My Aunty has died intestate in 2009 leaving behind a WILL wherein a chartered accountant has been nominated as Executor along with 10 beneficiaries. The deceased was a resident of Kolkata and has assets located all over India including a residential house in Kolkata. The executor has applied for a probate in Kolkata which is still pending because of a stay order given by the Supreme court against an application made by a third party belonging to Gujarat who wants the court to declare that he has a caveatable interest in the probate proceedings. His earlier application to the Kolkata high court on this matter has already been rejected by a double bench of Kolkata High Court. This particular party from Gujarat is not a legal heir.His contention to allow him to get a caveatable interest arises from an old consent agreement for sale of a particular agricultural land situated in Gujarat belonging to the deceased . The consent agreement says that a particular sum had to be paid by him to the deceased within 18 months which he failed to do so after the expiry of this period. Hence the consent agreement was terminated by the deceased during her lifetime after which the party filed a suit of specific performance with a Gujarat court and the suit is still pending. Now after the death of the de eased in 2009, the executor and the legatees have been made a party to this suit. Now the real question is that pending decision of the Supreme court, is it possible for the Executor or the legatees to convince and approach the Gujarat revenue department to accept our request for transferring the ownership title in the name of the legatees pending the grant of Probate
Kumar Doab
(Expert) 14 March 2015
Apparently the third party has filed suit for 'Specific Performance' within 3Y of termination of Sale Agreement.
It is a question that how can Revenue Dept. transfer ownership till WILL is probated...........and how can one conceal Probate Of the WIll is pending in court of pecuniary jurisdiction..........and that there is a stay granted by Supreme Court of India!
It is felt that Suit for specific performance is to be decided to get the stay vacated.
However you may wait for advise by Learned Experts.
Rajendra K Goyal
(Expert) 15 March 2015
Revenue department may not transfer pending decision of the probate and stay.
K.K.Ganguly
(Expert) 15 March 2015
1. Revenue Department can not transfer the name of the title holder i.e. mutate the property without Court order,
2. An application shall have to be filed for mutating the name alongwith the copy of the decree of probate of the will.
alexander
(Expert) 15 March 2015
1. IN Ahemdabad, Delhi and the three Presidency towns thew Will is not required to undergo mutation.The Will should be validly made and signed by two witnesses. The witnesses can be called for evidence to confirm that the testator and the two attesting witnesses signed the will in the presence of each other. Pl consult your local lawyer.
Alexander
nom de plume
Nitesh Worah
(Querist) 17 March 2015
Sir, Almost five years have passed since the stay order has been given by the Supreme Court against us and the EXECUTOR of the WILL has not approached the Supreme Court with any prayer for relief. The Order says that the SLP application given by the Third party of Gujarat shall be heard only after the Larger bench of Supreme court decides on the matter of Pamela Mohan Singh civil appeal no.8031 0fn 2001 the judgement on which was given by Justice G S Singhvi. My simple request to the experts is that while the Executor seems to be least interested in persuing the case at Supreme court, is it possible that all the 10 beneficiaries mentioned in the WILL jointly approach the Supreme court with a petition to hear our case. Will the same deem to be bypassing the powers of the Executor? Shall the Supreme court hear our petetion
Anirudh
(Expert) 17 March 2015
When the Supreme Court has granted stay and also indicated that they would be awaiting the deision of the larger bench, no useful purpose would be served in approaching the SC now. It is quite easy to blame the executor. The executor being aware of the situation is wise enough not to do anything now. you may blame him or curse him, but surely legally trained brains would not mind your cursing as they know that you are barking at a wrong tree!
In any case, so long as the Gujarat party has not withdrawn its claim, you cannot get any relief very soon from the SC, that is for sure.
T. Kalaiselvan, Advocate 
(Expert) 17 March 2015
Instead of going round to find solutions bye passing all legal procedures, why dont you all the 10 beneficiaries jointly decide to arrive at a settlement in the suit for specific performance pending in Gujarat subsequent to which the buyer would be pressed to withdraw the stay petition at Supreme court and then you can proceed with the probate petition pending at Kolkota, consult the executor and decide in that angle too.
