Challenging a registered will
Guest
(Querist) 22 September 2016
This query is : Resolved
My cousing siister is working in defense servcies and has remained mostly out of delhi for duties in far flung places. Her late husband acquired a flat ind elhi inclduing her money also but got it docuetned in his name only. His elder brither and his wife also came tolive there saying they can stay in the flat till they make own arrangement and becasue the cousing was anyw ays posted out of delhi. But in 2006 her husband suddenly diesd of heart attack while attending a marriage out of delhi.Proper medical investigation records were not available and neither cusin nor her delhi based family members were even informed of death. When she came on holidays she was not allowed to enter house. Thorugh hercontacts she learn about all the incidents and found that they have obtained probate of a will allegdly written by her husband in favorof his 2 very young nephews. The willis claimed to be be rgeistred too.
She moved court and probate was atken back and then she filed the suit to decalre will null and void and for eviction. She has also applied for mesne profits for period till judgement and she is not allowed though she is widow of onwr and only legal heir
now the questions are
1. Can her brither in law refuse her entry and living there ina portion when will probate is cancleled and is subjudice
2. Can she get interim relief through sperate resienr right applciaiton under DVA in local magistrate court?
3. What are grounds that can be taken to question this will under very very high and suspicious circumstances.
It seems her husbands property has bene grabbed by his brother and bhabhi by cooking updocumetns and stories and they were only living there in a friendly way or in a kind of oermissive licence like vilager allow farm land for villagers to use for cpeestrian purposes.
4. Can she ask court tos end will for forensic tests as she strongly doubts the genuineness of will.
5. On what points the party can be confronted
The beneficiaries ere minor and young. IT was the brother in alw who was made adminstaror of will.
Guest
(Expert) 22 September 2016
Mr. Gupta,
As an expert, you have been advising the querists on their problems on will. For example, you advised one person 9 months back to one querist at the following link:
http://www.lawyersclubindia.com/experts/Will-admissibility-576751.asp
So, I hope you may be having quite a good hold over the laws of will and the rights of the beneficiary of the will.
Also, when your sister moved court, she might also have engaged one lawyer for the purpose. Would not it be beneficial if you apprise the experts with your own learned views as well as the views of that lawyer on your own questions for their examination and review to enlighten with their individual opinions?
Probably that may help you better rather than by putting like examination type of questions before the students/ examinees.
Rajendra K Goyal
(Expert) 23 September 2016
Agree with the expert P.S. Dhingra ji.
Kumar Doab
(Expert) 23 September 2016
Agreed with Senior Expert Shri P.S.Dhingra.
Raj Kumar Makkad
(Expert) 23 September 2016
1. Not legally.
2. She can do but chances of its success are very remote as main issue is pending.
3. The grounds might be taken in the suit. This is not the proper stage to ask such question. It is better to disclose by you what grounds have been taken in the suit,
4. Yes.
5. This shall be an academic query. Your lawyer knows better as he is having entire brief.
Guest
(Querist) 23 September 2016
Thank you very much Makkar sir. I highly appreciate your straight and highly professional reply that makes points raised by querist very clear.
With reference to your reply in point 2, would it be worthwhile if she staright away files a writ in high court to seek lagal clarification in a such cases where wills are in question and unprobated the right of qualified femal dependentof owner to reside in house.
In other ways I would seek your opinion that assuming she was living their and not dispossessed due to her remote army servcie, would she be asked to leave her husband home even if it was bequethed to some one else without making arrangementfor her? There is no mention inwill that i saw about such issue.
Guest
(Expert) 23 September 2016
Dear Dr. Rajendra K Gupta,
If not intentionally ignored, you do not seem to have taken note of my observation about your lawyer's and your own experience based professional opinion. Had you expressed that could have given you some better purposeful inputs.
Anyway, about your fresh question, "would she be asked to leave her husband home even if it was bequethed to some one else without making arrangementfor her? There is no mention inwill that i saw about such issue," does your own professional experience say that any law can put compulsion on the will maker to make any mention for living arrangement for some one he has not made provision?
You would like to appreciate that a will is an expression of voluntary desire of the will maker, not a compulsion for any other issue that he does not want to add.
Kumar Doab
(Expert) 23 September 2016
Learned Expert Shri P.S.Dhingra has illustrated.
The author may respond for a fruitful discussion.
Raj Kumar Makkad
(Expert) 23 September 2016
I think the issue no 2 cannot be agitated before high court because the right to residence of a wife as clearly recognized in even DV Act is enforceable only in the ancestral house or the property left by deceased intestate.
In the given case, though the house was self-acquired but the same was allegedly willed out as such the right against other members of inlaws family or beneficiary of will cannot be enforced.
Guest
(Querist) 23 September 2016
Thanks makkad sir, but will probate is not done by court. It has been questioned.In fact probate taken ex parte in suspicious circumstances was revoked by Session judge and fresh suit has bene filed to declare it null and void. So there is no effective will.
Ina delhi high court judgement I saw that if a person questions the will probate is must and till probate is done the lady (daughter in law)who filed writ in high court had been declared to have right toi resise in the house.So my question basically was when will ha sbene challeneged, probate once failed and case pending can the widown of late house owner be denied residence there?
Raj Kumar Makkad
(Expert) 23 September 2016
Providing the possession of the mentioned house before the finalization of the pending appeal is nothing but providing final relief which as per civil procedure code is not maintainable.
The judgment, you mentioned, if possible either post or give its reference so that I may also go through it and thereafter may opine accordingly.
Guest
(Expert) 23 September 2016
It seems the author has intentionally ignored my observations to avoid his own views, as well as of his own lawyer. He has been putting one-sided questions, as if the members of the LCI are also his students. He may please don't mind, even if the LCI members are perceived to be his students, their queries are also required to be satisfied.
Anyway, about his latest query, it may be said that QUESTIONING OF THE WILL PROBATE OR REVOKATION THEREOF DOES NOT AUTOMATICALLY MAKE THE WILL AS NULL & VOID UNLESS DECLARED SO BY THE COMPETENT COURT OF LAW.
The author seems to be in some misunderstanding or is desirous of getting confirmation somehow or the other on his own misconceptions, while facts cannot change by themselves without proper evidence in the court of law.
However, had he given his own learned views, gained by his own experience, along with his lawyer's views, he could have got more purposeful inputs by other members also.
Guest
(Querist) 24 September 2016
Thanks Makkar sir for elaborate discusions and focussing attention on key legal points in matter. I am meeting a renowned advocate today at supreme court campus during my visit there regarding one SLP I am defending in person. Shall Post out come if we take any course of action and under whiuch provision. Thanks all for participating.
Guest
(Querist) 24 September 2016
Makkar sir, as desired by you I have traced the delhi high court order where the cse belongs to that state only and reproduc one clasue 23 of the order directly relevant to situation.
Kindly go through the case and if relevant would like to use it.
Thye message is clear, if the will is objected and under probe by court the woman cant be deprived of her right to residence under PWDVA . Section 21 of DV ACt as i read laso mentioend that this is epcial act and additional to existing law and ccan be enforced in any court where a matter is pending between parties. Being addional act and a special relief to victimsied women who are often xpelleed form home by various tactics is taken care of by this DVAct.
When civil judgment comes it will supersesde or modify award under DVA as applciable.
RFA (OS) 24/2012, C.M. APPL.4236/2012, 4237/2012 & 5451/2013
SMT. PREETI SATIJA …….Appellant
Through: Sh. Sudhir Mendiratta, Advocate.
Versus
SMT. RAJ KUMARI AND ANR. …………Respondents
Through: Sh. Nishant Datta and Ms. Garima Hooda, Advocates, for Resp.
No.1.
CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT23. The facts of this case contain the classic elements of a husband
seeking to evade his responsibilities upon marital discord breaking out. He
allegedly disappeared and was “disowned” by his mother. The appellant’s
mother-in law then instituted the suit, to dispossess the daughter in law and
her grand-children, claiming that she no longer has any relationship with her
son or her daughter in law. She based her claim to ownership of the suit
property on a will. The daughter in law has not admitted the will. Nor has it
been proved in probate proceedings. Often, sons move out, or transfer
properties or ownership rights, or shares in immovable properties, at the hint
of trouble or discord with their wives, in favour of their relatives. Likewise,
the parents of the husband often in such cases “disown” them after the son
moves out from the common or “joint” premises owned by either or both his
parents, when there is outbreak of marital discord. Courts have to be
cautious in their approach, while entertaining and short circuiting suits for
possession, which are in effect directed against the plaintiffs’ daughter-in
law, or else the right of residence in shared households would be a mere
chimera, a teasing illusion which the law grandly promises, but is seldom, if
ever, able to enforce.
Guest
(Expert) 24 September 2016
Mr. Gupta,
Good job!! In deed that was actually desirable on your part, which could make the discussion frutiful being based on your own findings, experience and efforts.
However, if you don't mind, since that is not a final decision of the HC and may not be of any use in your sister's case until final judgment, as that contains only the views of the judge with further direction to the parties to present themselves before the concerned single judge as per roster allocation, on 6th February, 2014 for directions toward further proceedings in the suit.
However, you can make use of the the averments to base your petition.
But, according to my opinion, probabability is 50:50 in the absence of any final decision.
You may thereforlike to make some more efforts to find some final judgment that could help you in your cousin's case.
Hope Shri Raj Kumar Makkad may also agree on my anlaysis of the order in view of the persisting problem.
Kumar Doab
(Expert) 24 September 2016
Another stance:
The existence of the WILL is admitted. The WILL is also admitted, as duly registered.
There is no suspicion and cloud on it.
The WILL is acted upon. There is no suspicion and cloud on it.
The WILL is duly probated. There is no suspicion and cloud on it.
The property is self acquired and disposed in life time of owner by duly registered WILL i.e. by duly appearing before registering authority. Thus it cannot be set aside on the counts of authenticity. The forensic test is aimed to bring out; what………………….in specific?
The husband can send monies to wife and wife can send monies to husband.
It is not clear if money sent by wife is on record.
It is not clear if money sent by wife is on record, to buy flat.
It is not clear if money sent by wife is on record, to buy flat, in the name of husband (+ wife?).
It is not clear if money sent by wife so huge amount that it shall suffice to buy flat.
It is also not clear if a defense officer has such declared income from known sources.
It is also not clear if a defense officer has declared to her employer that she is investing in a flat.
The legitimate owner of the flat and title holder had no child as per the post. { she is widow of onwr and only legal heir}
If wife is staying away due to employment then she might have been coming to husband during holidays and must have been talking frequently.
More so if husband was a heart patient (her husband suddenly diesd of heart attack )?
If so why she was not aware of the death?
If so why the probate of WILL was ex. Party?
Kumar Doab
(Expert) 24 September 2016
Another stance:
The averments and record has been examined by a lawyer as it is clear from the 1st post in the query!
"She moved court and probate was atken back and then she filed the suit to decalre will null and void and for eviction. She has also applied for mesne profits for period till judgement and she is not allowed though she is widow of onwr and only legal heir"
Expert Mr. Dhingra has asked to share the opinion of lawyer.
It is not shared.
Kumar Doab
(Expert) 24 September 2016
Another stance:
The court seems to have allowed the litigant to enter and put forward her views.
"She moved court and probate was atken back"
Guest
(Expert) 24 September 2016
Dear Dr. Rajendra K Gupta,
I have full sympathy with your cousin sister. But I feel, you may also have to legitimately take in to account the views of Shri Kumar Doab before taking any decision about litigation on her behalf.
Shri Raj Kumar Makkad may like to see the views of Shri Kumar Doab also to enlighten the author besides me, Kumar Doab and other readers.
Kumar Doab
(Expert) 24 September 2016
The author has posted:
"Thanks all for participating."
I am also moved by the contents of the query and like all experts, is exerting to post as per limited understanding from the posts in the thread.
I shall request all experts to post and support.
Guest
(Expert) 24 September 2016
Dear Shri Makkad,
The author seems to be interested only in your advice. He won't take note of any other advice unless you contradict or endorse the opinion of Shri Kumar Doab or mine. That is why, I requested you make a review of the opinion of both of us, so that the author may get benefitted adequately by your supplemented advice.
It seems nobody else is coming forward to his help, may be due to some specific reasons.
Raj Kumar Makkad
(Expert) 24 September 2016
Respected Dhingra Sir! I am just a learn of law. I know just workable legal knowledge, however, i try to learn from seasoned legal luminaries like you. I am not having so expertise to analysse the replies posted by you or Doab.
Kindly don't take the reaction of author so seriously.
Guest
(Expert) 24 September 2016
Makkad ji,
Learninghip never ends in the life of a person. On certain issues, you may be having some very good grasp of law, while on some other, I may also be having an appropriate grasp.
My opinion can also happen to be wrong. So for the benefit of the author and help to her cousin sister in right perspective, I thought is proper to request you to have a look and give your observantion on opinions of both of Shri Kumay and mine.
However, the author is not restrained on any count to ignore opinion of any one or all of us by use of his own wisdom, as he also used to advice to others on various issues on this site.
Guest
(Querist) 24 September 2016
I have noted comments of all ecperts here. That is sure. I met a senior advicate in supreme court this morning and we have finalsied some stratgey . he will tell me after 2 days how to tackle. But he was convicned that the lady specially a defense offceir has been subject to cmrinal conspiracy in grabbing the property. I will update on any action we initiate for further help.Thanks
Guest
(Querist) 24 September 2016
Doab sir just for your scene mentiuoend above. she was a major and cost of hosue was 2 lacs when society allitted it. That is the cost. Itw as her money only that s used.Any way that is no mroe relevant in present state of case.The legal point is if will is not probated and consistently objected to by the lady , can she be prevented to reside in her own house (legally she is the only class 1 heir)and not jsutified to seek right of residence u/s 19 of DVAct
As suggeted by Dhgingra sir, I will try to trace coinnecte dcase laws and any other importnat cases.
Dhingra sahib there is this case
OA no 764 of 2007 in CS No 548 of 2007 D/d 3.7.2007 Madras High court Vandhana Vs T srikanth. Before V Ramsubramanian, J.
Kumar Doab
(Expert) 24 September 2016
1st Post::::".....that they have obtained probate of a will......"
2nd Post::: ".......wills are in question and unprobated......"
3rd Post::: "will probate is not done by court. It has been questioned.In fact probate taken ex parte " {".....probate taken ex parte .....}
Last Post:::: ".....The legal point is if will is not probated ......"
Kumar Doab
(Expert) 24 September 2016
Expert Mr. Dhingra has asked to share the opinion of lawyer.
The lawyer is aware of the facts on record and submitted to court of law.
The lawyer's opinion and facts submitted to court may be posted.
Guest
(Expert) 24 September 2016
Please give link of the case for access.
Kumar Doab
(Expert) 24 September 2016
Expert Mr. Dhingra,
You wanted following link or
Delhi High Court
Smt. Preeti Satija vs Smt. Raj Kumari And Anr. on 15 January, 2014
https://indiankanoon.org/doc/187104390/
OR
OA no 764 of 2007 in CS No 548 of 2007 D/d 3.7.2007 Madras High court Vandhana Vs T srikanth. Before V Ramsubramanian, J.
OR Case filed by cousin of Author?
Guest
(Expert) 24 September 2016
Kumar ji,
That I have already gone through. I desired link for Vandhana Vs T srikanth. Before V Ramsubramanian, J. case of Madras HC, as referred to by the author.
Kumar Doab
(Expert) 24 September 2016
The author may post it.
I have sent what was with me.
I would suggest if the link to the petition/case and decision filed by cousin sister of author is also posted.
Kumar Doab
(Expert) 24 September 2016
Case Status : Pending
Status Of : CIVIL SUITS 548 Of 2007
Litigants : VANDANA Vs. T.SRIKANTH
Pet's Adv : M/S V.RAGHAVACHARI
Res's Adv : M/S G.K.R.PANDIAN FOR D1-3
Last Date of Hearing : ---
Next / Final Date of Hearing : Wednesday, October 29, 2014
Case Updated On : Tuesday, January 05, 2016
Category : Permanent Injuction
Connected Application(s)
No Connected Application
Connected Matter(s)
No Connected Cases
Guest
(Querist) 25 September 2016
I am really happy to see sop many experts working to resolve the riddle and paring their valubnale time
Dhingra sir, I have a print copy not link.Taken form a journal. But if you put the cittaion in goole i am sure it will pop up as everything digitalsied now.
But million dollar quesiton ow is after soimuch reasearch where this groiup arrives
what are consluidng extract and line of action and legal backup the lady has.
May I request one of above experts to kindly draw conslusions/suggesitons. Since I am not advcoate.
Kumar Doab
(Expert) 25 September 2016
Author @ Rajndra K Gupta,
It is you that could have and should have put the citation in google, and if digitalised, you could and should have posted the link as asked by Expert Mr. Dhingra.
This is instead of asking Expert Mr. Dhingra to do so, for you.
Usually experts search, if required by them.....................if thy feel they need to search..........................at court websites, prominent legal websites. Some of which are paid, but reliable.
Some search results may not be reliable.
One such search result I have already posted, above.
Based on what has been posted by you so far, the billion dolor reply to your million dolor question has already been posted for you, in this thread and require NO repetition.
Expert Mr. Makkad has also, illustrated it for you, in the beginning.
So far there is neither any research nor any conclusion, other than the comments of lawyer consulted by you and mentioned in this thread.
Laws is equal for everyone be it defense personnel, executive or a civil personnel.........i.e. citizen from every strata and hierarchy.
So far it is self acquired property and disposed by legitimate owner by a valid deed.
Rest are, so far, speculations.
Raj Kumar Makkad
(Expert) 25 September 2016
mark this query resolved now. After all we have crushed it.
Guest
(Querist) 25 September 2016
Ok i close the thread as resolved
Guest
(Expert) 25 September 2016
OK, fine, no further comments.
