Will for my house
Amit
(Querist) 10 March 2014
This query is : Resolved
Hi,
My DVC case is going on and my wife got an injunction (the registrar is 2nd respondent) on the house (on my name) to not register any document on that house.
The HC has put stay on this injunction.
Now, I'd like to write a will on the house and register it with the registrar. What's the process for it so that it does not come under dispute in case of my death.
(1) During the HC stay on injunction, can I register my will?
(2) Should I file a petition in court to allow the registrar to register my will?
Any other process to be followed? In the absence of any court order allowing the registration of will, my wife can dispute the will saying that it was done during the stay and not after the final order.
Though I am optimistic about living beyond the HC final order, I am just being cautious.
Thanks
Anirudh
(Expert) 10 March 2014
Dear Amit,
What you have indicated here is your understanding of the effect of the court order. (The legal nuances may be completely different than what you had stated.)
Therefore, it is very much necessary to know the exact wordings of the Court order. Therefore please give the contents of the order (by deleting the exact particulars of the property if it is mentioned in the order). This will enable us to give an appropriate answer to your query.
Any answer, without this, would only be a guess work.
ajay sethi
(Expert) 10 March 2014
answer queries raised by MR anirudh .
please note registration of will is optional .
Amit
(Querist) 10 March 2014
Thanks.
The lower court order (in response to her interim injunction petition) reads:
"The first respondent is prohibited from alienating the house or creating third party rights over the house. The sub registrar is directed not to accept registration of any document over the house until further orders."
This was replaced by the same court in response to other petitions: "The interim order passed is modified and in its place an order is passed directing the first respondent to pay towards rent monthly amount of ..."
The session court overruled the second lower court order and upheld the first order.
The HC has stayed this session court order:
“Interim stay of the order under revision.
The petitioners shall comply with the directions passed through common order (i.e., second order).”
I hope this clarifies the situation.
Yes, I know registration of will is optional. But I'd like to do it just to avoid any disputes in the future.
Let me know how can I get the will registered so that there is least chance of dispute in the future.
Thanks
Anirudh
(Expert) 10 March 2014
In my view, the interim order will not stand in the way of making a Registered WILL.
This is for the reason that the WILL would take effect only after the demise of the testator. It is not alienation / transfer. Therefore it would not violate the interim orders.
Ofcourse, there is every possibility, that without understanding the legal import and implications, the Registrar simply going by the orders "not to accept registration of any document over the house until further orders" may refuse to Register the WILL.
Rajendra K Goyal
(Expert) 10 March 2014
Will is not necessary to be registered.
Will in not immediate transfer of property.
In absence of specific orders, will doing is not restricted.
Amit
(Querist) 10 March 2014
Thanks Anirudh and Rajendra.
Yes, the registration of will is not mandatory but I want to be on the safer side by registering it.
The registrar may refuse it and even if he accepts it, it may be disputed by my wife in future since there was explicit order prohibiting registration of any document over the house. Though I am doing it during the stay period, it may be disputed later.
So in order to be on the safer side and to be perfect, what should be my action?
ajay sethi
(Expert) 10 March 2014
get will drafted by a lawyer . signed by testaor in presence of 2 attesting witness . dont register the will .
Anirudh
(Expert) 10 March 2014
I am afraid you are back at square one.
One time you seem to have understood the answer, but simultaneously you appear to be a confused lot.
We have categorically stated that the present restraint order does not extend to writing a WILL and getting it registered as IT DOES NOT AMOUNT TO ALIENATING / TRANSFERRING THE PROPERTY IN ANY MANNER WHATSOEVER. Therefore, getting a WILL registered will not be against the orders of the court.
(However, the Registrar may not be prepared to register the will).
The question of your wife objecting to the Registered WILL would simply not arise - as the WILL would become effective only after the demise of the testator; in the meanwhile as per the Court case the property is to be disposed off/dealt with in any other matter, the question of the WILL ever getting effectuated would not arise.
Raj Kumar Makkad
(Expert) 11 March 2014
I do endorse the wise advice of Anirudh.
Amit
(Querist) 11 March 2014
Thanks.
My question was what needs to be done in case when Registrar refuses to register my will.
Amit
(Querist) 11 March 2014
Also, yesterday I came to know that my wife has filed a vacate petition in the HC against the interim stay.
What is this vacate petition?
Will my wife needs to file counter affidavit for my main petition in HC or is this vacate petition the counter to it?
What's the procedure going forward?
Thanks
ajay sethi
(Expert) 11 March 2014
application for setting aside orders pased for stay . you may based on your lawyer advise file affidavit in reply . after hearing both parties corrt will pass orders
Amit
(Querist) 11 March 2014
Is that the final order in my case (I approached HC and got a stay)? Or final order will come after the order for vacate petition?
Anirudh
(Expert) 11 March 2014
Have you engaged any lawyer or not?
