Grandmother will require probate
Niraj Mistry
(Querist) 30 October 2018
This query is : Resolved
My grandmother died and left a will of house property at Ahmedabad Gujarat. Beneficiary name is my and she remove all her son and their heir including my father from property right at the time of will made Dec 2013. Will is registered at sub registrar office with two witness. Did I need probate for will ? What should I do next.?
Niraj Mistry
(Querist) 30 October 2018
Please can anyone help me out?
KISHAN DUTT KALASKAR
(Expert) 30 October 2018
Dear Sir,
There is no limitation as per following
Bombay High Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268). Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:--
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates".
Please mark “LIKE” if satisfied by my answer.
Kishor Mehta
(Expert) 31 October 2018
If the WILL is executed in Gujarat for a property in Gujarat, probate is not necessary.
Dr J C Vashista
(Expert) 31 October 2018
It is not compulsory to get the will probated in Gujarat, hence apply for mutation in the record of municipality.
Niraj Mistry
(Querist) 31 October 2018
Kishan Sir,
Can you please explain in simple language .
Dr J C Vashista Sir,
How can I apply for mutation in Ahmedabad Municipal Corporation.
Other question
Can I have to apply in revenue department to transfer property ?
After all this and transfer property can any one object it ?
Kumar Doab
(Expert) 02 November 2018
IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.
IT is not mandatory to probate the WILL in other areas. IT is not mandatory to register the WILL.
The WILL should just be valid. Unregistered WILL can be acted upon.
The last valid WILL prevails.
A registered WILL is usually not set aside atleast on counts of authenticity.
The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.
The legal heirs may also consider perspective of registered family settlement after the WILL and register it.
Check locally and comply with procedure. Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by inheritance/probate in the name of legal heirs in mutations records.
Thereafter obtain copy of updated mutation records.
Visit the O/o concerned authority in your area and comply with procedure.
Kumar Doab
(Expert) 02 November 2018
Looking into query posted by you and subsequent posts IT is felt that the WILL is not submitted and hence not contested.
Therefore probate of WILL may not be your immediate need.
