status of will
Vinod Bajaj
(Querist) 26 September 2010
This query is : Resolved
My father built a property from his own earnings in 1976 but included the name of my mother while registering the plot on which he built the house. The sanction plan as well azs the comletion certificate issued by MCD Delhi is in the joint name.
My father expired in 2005 and left a will registered with the registrar where in he declared that since he spent the entire amount in purchase of plot and the constructions thereon, he is the actual owner. HE HAD DECLARED THIS IN HIS INCOME TAX RETURN OF THE SPECIFIC YEAR IN WHICH THE HOUSE WAS CONSTRUCTED.
In his will he has left the property in the name of his three sons but has not included his daughter who is no more but has two living children. My father further declared that my mother can enjoy living in the house as she please as well as enjoy the rent of any portion which she has rented out.
My questions are:
1. Can my mother sell that property?
2. Would the children of my sister can claim their share in the property.
3. Should my mother make a will of this property?
4 What is the position of the will left by my father.
Please reply to vinodbajaj@in.com
Devajyoti Barman
(Expert) 26 September 2010
The Will can not deprieve a person from title in the said property if he/she other has in it.Irrespective of the existence of the Will, your mother does hae 1/2 share in the property and she can do with it whatever she likes and her legal heirs can clam share in her 1/2 share provided she dies intestate.
s.subramanian
(Expert) 26 September 2010
It is better to take a will from your mother also to avoid unnecessary claims in future.
adv. rajeev ( rajoo )
(Expert) 26 September 2010
Your mother can enjoy the property but she cannot sell.
Your sister's children cannot claim their share in the property.
three sons have got right over the property because on the basis of the will they are the owners of the property. Your mother's right is limited. She cannot make will also.
If three sons filed a declaration suit then your mother will have to prove that she has contributed the amount to purchase the property.
The property is self acquired property of your father.
Vinod Bajaj
(Querist) 27 September 2010
Kind Attn; Mr Debjyoti Barman/S.Subramanian/Rajeev
Let me at the outset thank each of you to have responded to my queries. Ho-ever I am afraid the opinion of Mr. Rajeev differs with the other opinion. I presume Mr. Subramanian agrees with the opinion of Mr. Barman. I have also been told by my lawyer that with the amendment of Indian Succession Act in 2005 irrespective what has been written in the will of my father if the property is in joint ownership in the registering authority, my mother after my father's demise s the single owner and she can do what she likes with the property. Request please clarify what is correct as my mother is agreeable to make a will. However since she is very old and not in position to walk; how do we get the will registered which we feel would be important as we do expect it to be contested in the court of law by my sisters children .
Also shall we get the will of my father probated? will that help?
adv. rajeev ( rajoo )
(Expert) 27 September 2010
If there is clear recital in the will that after the demise of the father, mother is sole owner of the property. In such case mother can make a will. But in your first question you have said that your mother can enjoy. If it is not in the will in the half share sons and daughter can claim their share
If your mother is unable to walk you can request the sub registrar he will send one person to the house for this you will have to pay extra govt., fees.
Uma parameswaran
(Expert) 27 September 2010
Father could not make a WIIl for the joint property.So the WILL is void. Your mother have full right over the property now and she can convey as per her wish.
sanjay mundada
(Expert) 27 September 2010
will by father will be in fuull force .but mother can creat a dispute .ther is recent judgement of s.c.that earning by husband while co-living wife is entitle to get 50% share.so she can challenge will .
regard to her share she can make a will.
daughter can not entitle to get share.
but they cann crat troble by climing in the cort.
in mharashtra there are 50% suits are fake of spcific performance and others related to real estate.
Vinod Bajaj
(Querist) 28 September 2010
Thanks everyone who has been kind to give e their opinion. A question for Mr. Sanjay Mundada. Can you quote the Sc judgment which you have referred to in your advice? I will be grateful for your help.
