parthasarathy K 26 January 2018

My grandpa WILL and Land Registration Differ?

Hi,

We are Hindu Family .My Grandfather Wrote and Registered a WILL about a House for his Two Sons as Two Equal Parts and My Granpa Died.

House has Two Floors and my Grandpa said Either Floors can be used by anybody.

Two sons name as Kanna and Vinayaga.

Kanna was Elder and Vinayaga was Younger.

NOW, Kanna has 2 sons and Vinayaga has one girl and one boy children.

In that WILL, it is said that there will be NO property rights for Grand Girl Children.

While Writing the WILL, Vinayaga has only One Girl Child, So my Grandpa added a Line in the WILL, that incase if Vinayaga has Boy Child in Future, then Vinayaga can continue his property share right to his son.

After some Years, Vinayaga's Wife died after givng birth to her Son named RAJU. Now Vinayaga Marries another Girl and gives Birth to another TWO sons. The Second Marriage was NOT registered Legally.

After some Years, Vinayaga also dies because of Bad Health. Kanna Tries to Protect the property from Vinayaga's Second Wife, who was trying to cheat him. Now Vinayaga's First Wife Son, RAJU was MAJOR AGED. But Still RAJU not proves That he is Legal Heir of Vinayaga. RAJU has inability to make Self-Decision and he is in Control of Vinayaga's Second Wife.

Finally Kanna Transfers his Property rights to his Wife Banu, when his sons are MINOR AGED. Vinayaga's Second Wife also, asking for property rights for his sons but NOT for Vinayaga's first wife's son RAJU.

NOW, the Land Registration - Encumberence Certificate shows that the House Property Belongs Only to Kanna's Wife Banu.

Land Patta ( Land Revenue and Property Tax Documents) also shows only the name of Kanna and Banu.

Now the Questions are as Follows?

1. If Kanna likes to Sell the Property, Can he Sell Independently? (since Land Documents are in favor of Kanna only)

2. Whether my Grandpa's WILL Controls the Land Registration? Whether the WILL is necessary for NEW BUYER of Kanna's Property?

3. Is it Necessary, to Get Authorize from Vinayaga's Second Wife or Vinayaga's First Wife Son, if Kanna Likes to Sell Property?

4. Whether, Kanna has any Chance of Making the Vinayaga's family to be out of the Property?

5. Whether Raju, has Chance to Prove the as LEGAL HEIR of Vinayaga, and to Claim Property Rights?

Kindly Answer my Questions by mentioning the respective Question Numbers. I HOPE you all Help me in solving this so Tough Problem in my family.

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11 Replies

Kumar Doab (FIN) 26 January 2018

Has the WILL been duly acted upon without any cloud on IT?

The process and procedure to get share updated in mutation records is simple.

The O/o Authority under whose jurisdiction property falls say; MC, has a set procedure for such matters if a (valid) 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 (Valid) WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from all legal heirs and/or ask to release advt in newspaper and/or write to all legal heirs to submit objections if any in a set time.

If the WILL is contested IT lads up in probate court of pecuniary jurisdiction ad court decides.

The authority shall update share as per provisions in valid WILL and/or of personal law that applies in mutation records.

By the updated mutation records the beneficiary (ies)/ legal heir(s) attain rights equal to that of owner and can enjoy/dispose the property/share like owner.

Thus if the WILL has been duly acted upon the mutation records should show ownership in the names of sons (and beneficiaries) ; Kanna and Vinayaga.

Kumar Doab (FIN) 26 January 2018

Also note that;

In case of Hindu male that has died without disposing self acquired property owned by him by a valid/registered deed/WILL; The 1st right for equal share is of his ClassI legal heirs i.e Mother ( if alive as on date of death), Wife ( if alive as on date of death), sons, daughters……….. The share in ancestral property devolves upon his legal heirs.

Kumar Doab (FIN) 26 January 2018

If Vinayaga has married after death of 1st wife then 2nd marriage should be valid.

Here if the 2nd marriage was were performed per customs then even if marriage was not registered then 2nd marriage should be valid.

The children have right in ( Hindu) father’s property ………….If the children are born from an arrangement that is marriage……………..even if marriage is valid/void/voidable………….

Thus illegitimate children have right in father’s property ………….If the children are born from an arrangement that is marriage……………..even if marriage is valid/void/voidable………….

The children that are born from an arrangement that is NOT marriage have NO right in father’s property………….

You may go thru;

https://www.lawyersclubindia.com/articles/Child-born-from-arrangement-other-than-marriage-has-no-right-on-Hindu-Father-s-property--8467.asp?utm_source=article_mailer&utm_medium=email&utm_campaign=article_followup

Kumar Doab (FIN) 26 January 2018

So children fathered by Vinayaga from the womb of 2nd lady from his 2nd marriage should have rights in estate/property ( self earned/acquired and ancestral) left un-disposed by Vinayaga in his life time if the arrangement with 2nd lady was marriage………….

So children fathered by Vinayaga from the womb of 2nd lady from his 2nd marriage + 2nd lady (wife) + children from 1st marriage and his mother (if alive as on date of his death) should have equal rights in estate/property left un-disposed by Vinayaga.

If the arrangement with 2nd lady was not marriage children fathered by Vinayaga from the womb of 2nd lady from his 2nd marriage may not have rights in estate/property left by Vinayaga..

The 2nd lady may still claim maintenance from Vinayaga/ estate/property left by Vinayaga.

Kumar Doab (FIN) 26 January 2018

The nature of property that devolves by WILL (valid and duly acted upon without any cloud on IT) is self acquired.

A hindu man/woman can dispose his self earned/acquired estate/property in his life time by a valid/registered deed in anyone’s favor.

As per your post Kanna has transferred his Property rights to his Wife Banu, when his sons are MINOR AGED.

If Kanna was title holder/owner of the said property (share by duly acted upon WILL + his self earned/acquired estate-property) he had the right to do so.

By which valid/registered deed Kanna has transferred his Property rights to his Wife Banu?

Has Banu submitted said valid/registered deed to O/o Authority and updated mutation records?

If the deed is valid and she proceed to mutations and she is the owner/title holder.

Why the entire property is shown in the name of Banu ( wife of Kanna) and not also in the name of Vinayaga?

Did Vinayaga dispose his share in the property in his life time by a valid/registered deed in favor of Kanna?

If NO how can entire property (consisting of two floors originally in the name of Grandfather) be in the name of Kanna and Banu ( wife of Kanna)?

Kumar Doab (FIN) 26 January 2018

1. Kanna may not be able to sell property:

Since as per your post, Kanna has transferred his Property rights to his Wife Banu.

IN that case he may be no more owner/title holder.

2. If WILL (Valid) has surfaced, IT cannot be ignored. If WILL fails the test of law/probate …is invalid then succession set in……………and property shall devolve as per provisions of succession rules (As explained above).

The last wish of testator in valid WILL is supreme…(As explained above).

The (sensible) prospective buyer shall ask for WILL, evidence of WILL having been duly acted upon without any cloud on IT and/or Probate.. (As explained above).

WILL (Valid and duly acted upon or probated) controls in the sense that last wish of the testator in a valid WILL I supreme.

And the authority shall mutate the property in the names of beneficiaries as per provisions in WILL that has been duly acted upon without any cloud on IT and/or Probated.

3. If the arrangement with 2nd lady was marriage then she, her children from Vinayaga (+ mother of Vinayaga are legal heirs of Vinayaga and (As explained above)………………

They alone/jointly can sell the share of Vinayaga…

Kanna or Banu cannot can sell the share of Vinayaga…until or unless Vinayaga diposed his share in favor of Kanna (As explained above)………………

Moreover if Kanna disposed his share in favor of Banu then Kanna cannot can sell, since he is no more an owner/title holder…

4. NO ………….. if Kanna disposed his share in favor of Banu then Kanna cannot, since he is no more an owner/title holder……………..in other words he cannot act like owner………….

Until or unless he is vested with powers say by ;PoA by Banu………..

Kanna and/or Banu may avoid evicting anyone forcibly and follow due process of law for eviction………………. if Vinayaga’s arrangement with 2nd lady was not marriage…………

The 2nd lady (if Vinayaga’s arrangement with 2nd lady was not marriage) may still stake claim for maintenance from Vinayaga/estate left by Vinayaga………..

If Vinayaga’s arrangement with 2nd lady was marriage and Vinayaga did not dispose his share (that devolved upon him by WILL) then 2nd lady and her children are legal heirs/inheritors of Vinayaga and cannot be evicted at all…………

5. Raju as per your post is son of Vinayaga from his 1st marriage and there is NO cloud on him being son and legal heir of …………..Vinayaga.

Until or unless Vinayaga disposed his share in favor of Kanna, Raju being legal heir/inheritor of Vinayaga cannot be evicted at all………… (As explained above).

Kumar Doab (FIN) 26 January 2018

Obtain the mutation records with all link docs from O/o Authority under whose jurisdiction property falls and show these to a very able senior LOCAL counsel of unshakable repute and integrity specializing in succession/testamentary/civil matters and having successful track record…….for a considered opinion………

The said land records might be having some defects.

If there is any defect in said land records/EC etc it shall come out before your very able senior LOCAL counsel (As explained above).

Kumar Doab (FIN) 26 January 2018

How are you related with this matter?

Have you consulted a very able counsel ( As explained above)?

If yes, what is the opinion of your own counsel?

Ms.Usha Kapoor (CEO) 27 January 2018

Will is supreme of all. It fdetermines the property rights inter se of the testators heirs asper the testators will.

1)No! will prevails and as per the wish of your grand pa both the floors should be enjoyed by either of kanna and vinayaga.Kanna can't sell off the property without the consent vinayaga.If vinayaga consent is not obtained before sale such sale its illegal.

2)Will controls everything. so Kanna'ssale is under a cloud and titkle is not marketable. Buyer do notget any rights.

3)Yes and from you as well.

4)As will is supreme there is no chance of Kanna making vinayaga out of property in question.

5)Raju son of Vinayaga will have chance to prove that he is the son of vinayaga and therefore entitloed to a share in greatgrandpa's property.

Ms.Usha Kapoor (CEO) 27 January 2018

BANU' SECOND WIFE T9LL HER LEGAL STATUS IDS PROVED DOEN;T GET ANY -ROPERTY RIGTS..bUT HER CHILDERN ESPECIALLY BOY WILL INHERIT UNDER THE WILL OF GREATGRANDPA.