partition
raghavendra
(Querist) 28 December 2010
This query is : Resolved
sir,
my friend mother encroached some govt land ,after she expired govt granted that land to her after her death . but my friend mother made that will on her on daughter before her death and before grantd that land to her ,my question is how long that will is valid
she has totally 6 daughters and two brother all 6 daughters want to give this site to one of their brother ,but another brother objecting this ,instead he says he wants half share of the site , how partition can be do
adv. rajeev ( rajoo )
(Expert) 28 December 2010
It is a granted land so all are having equal share in the property like this it is to be contended.
raghavendra
(Querist) 28 December 2010
means only 1/8 portion will be one brother , if all daughters release theire rights towards another brother this brother will get 7/8 portion is it right ?
what is the value of that registered will.
another question is that whole site is contained with house how partition would take place.means how it sivide 1/8 portion
Advocate Bhartesh goyal
(Expert) 28 December 2010
Your friend's mother had no title and ownership of questioned land up to her death so the will in regard to questioned land is not valid.Questioned land has been granted after death so all legal heirs have equal right or share in property.
raghavendra
(Querist) 28 December 2010
sir.
is there any law regarding certain portion only should be this son / daughter, because whole site is coverd with buildong ,one brother saying i want one side of the portion ,which is more than 1/8 portion,what is remedy
Bhawani Mahapatra
(Expert) 28 December 2010
Mr Santosh
To probate a will, 3 conditions must be satisfied. They are: the property must be absolute property, the will is made out of free and fair mind, and it must be last will.
The land in question is not absolute property till death of the lady and she had made will before it. So the will is invalid.
However, if the govt. has settled the land in question with retrospective effect, i.e. from the date of her enchroachment and if in can be established through documents, then the will may be valid.
Devajyoti Barman
(Expert) 28 December 2010
The property would be equally divided amongst her all sons and daughters.
I slightly differ that to take probate of a will the executnt must have to be the absolute owner of the property. The probate court has no concern with the title of the property but only the genuinness of the will.
G. ARAVINTHAN
(Expert) 28 December 2010
It seems, she had applied for grant. So she got will in anticipation. It is valid and the Donee in the will only can inherit the property
raghavendra
(Querist) 29 December 2010
yes she applied for grant
granted last 3 monnts back only not done with retrospective effect ,
raghavendra
(Querist) 29 December 2010
what si this anticipation ,at the time of making registred will she had not the title over that property ,
R.Ramachandran
(Expert) 29 December 2010
It is agreed that though she was having possession of the land at the time of making the will, she was not having title to the same. But once she subsequently gets the title, she cannot resile from the WILL. The Will would have effect irrespective of whether she had title in her name at the time of making the Will or not. The earlier defect of not having title would get cured the moment she gets the title.
raghavendra
(Querist) 29 December 2010
so ,this will is valid ,as per the will only one daughter will obtain the whole property , right ?
is there any law regarding this ,
can i get judgement regarding this ,
M V Gupta
(Expert) 29 December 2010
The Govt while granting the land in favor of the mother appears to be not aware of the death of the Mother. As such the grant may suffer the contingency of cancellation by the Govt.So far as the will is concerned the same can be got probated as while granting the probate the court is concerned only with the genuineness of the will. Without going much into the aforesaid issues it is advisable for all the children to go by the wishes of their departed mother. If all the sisters desire to relinquish their share in favor of one of the brothers, the other brother should be monetarily compensated since it is impractical to divide i/8 p[rotion of the house. There are decisions to the this effect.
