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Anonymous
(Querist) 05 October 2011
This query is : Resolved
Hi Experts,
one old person age 75 years made will in favour of their grandsons in the year 2008 this will was registered from sub registrar,afterwards the daughter of old man took away from her pareatral home & kept in her matrimonial home & on 8/8/2011 old man transfered that property to his daughter`s name & got register it on the consideration of Rs 1,91,000/ which he did not take in the office of sub registrar but mentioned in document.old man is patient of paraslyse from right side & not able to speak properly.In his will he put sign in urdu & mark tumb impression but in registrary he marked thumb impression not singed anywhere & he did not cancel his will.Both grandsons are major,in will speceificaly mentioned that it is present & future will after his death.One identifiefing person wants to give witness in the favor of grandsons.Property still under possession of his grandsons ?
Plz guide me what remedy can take grandsons ?
Which type of suit can be filed & to whom against ?
Can transfer of document ie registrary can be cancelled & what is the procedure for it?
R.Ramachandran
(Expert) 05 October 2011
If the old person is still alive, you cannot file any suit, because the WILL will become operational only after the death of the person making the WILL.
A person can make any number of WILLs and only the last WILL would be recognised. There is no necessity that the WILL should be registered.
Even after making a WILL, a person can dispose of the property to anybody - either by way of Sale or Gift etc. It is only those property, if it remains, after the death of the person concerned will go as per the WILL. If the person had already disposed of his property during his life time, and if no property is left after his death, in spite of any Registered WILL, the person in whose favour the WILL has been given cannot get any property.
It seems that the old person has executed a Sale Deed on 8.8.2011 for a consideration of Rs. 1.91 lakhs in favour of his daughter. It is not clear what you want to say by saying "8/8/2011 old man transfered that property to his daughter`s name & GOT REGISTER IT on the consideration of Rs. 1,91,000/ which he did not take in the office of sub registrar but mentioned in document.
Do you mean to say that the document dated 8.8.2011 was REGISTERED, and though he has mentioned the consideration of Rs. 1.91 lakhs in the document which has been registered, the old man did not take the money in presence of the Sub-Registrar or in the office of the Sub-Registrar?
Once the document is registered mentioning the amount of consideration that is enough. One need not take the money in the presence of or in the office of the Sub-Registrar's office.
Chanchal Nag Chowdhury
(Expert) 05 October 2011
If he is a Muslim, the old man can only dispose of 1/3 rd. of his property by Will.
The grandsons at present cannot take benefit of the Will but can certainly file a suit to cancel the gift. This they can do irrespective of their religion.
ajay sethi
(Expert) 05 October 2011
although will has been made by grandfather in favour of grandsons in 2008, till he is alive he can sell the property to any one he deems fit .
if he has sold the property and sale proceeds of rs 1,91,000 has been received by him the grandsons dont have any case and they cannot challenge the sale
prabhakar singh
(Expert) 05 October 2011
1]It is well known fact that a will come into operation only when testator dies.hence if your grand father is alive all rights with regard to property so also to cancel the sale deed you want to assail is vesting in him and not in you.only after his death this right can be said to have vested in you.
2]Its' a great question why you people allowed her took away him to her matrimonial home when he was so sick.his care was duty of your people but you wanted his property but without performing your own duties and thought better some else care him,and she has taken a ride on your this psychs.
3]I understand that you want to convey that in a very serious illness condition out of greed she managed to carry him on some advise that a sale be get registered to make her owner momentarily.I also understand from your post that Rs.191,000/=,although shown as consideration for sale but the same was not
paid before registrar rather the same has been shown to have been as recieved in past but when registrar wanted to confirm about the same he was not able to speak and admit about prior receipt of consideration as he was so ill that he could not admit.
These facts do create suspicion about a fare execution of a sale deed out of free will and consent with consideration and endorsement of registrar ,if so as you state can serve purpose that sale deed has not been legally executed and is voidable at the option of its executor[your grand father]that fraud and undue influence by some misrepresentation was played upon him and due such an illness he did not understood the true import of the document
nor washe capable to understand,no penny was at all was paid and the sale is void.BUT SO LONG HE IS ALIVE ONLY HE CAN SUE.AND HE IS SO SERIOUS THAT ADVISING A SUIT BY HIM IN THIS CONDITION IS TO CONFIRM THAT HE CAN LOOK AFTER HIS BUSINESS IF HE CAN FILE A SUIT,HE CAN ALSO EXECUTE A SALE.
HENCE EVEN IF POSSIBLE NO SUIT ON HIS BEHALF IS ADVISABLE AT ONCE AND YOU CAN NOT FILE A CANCELLATION SO LONG HE IS ALIVE.
THEN COURSE OPEN TO YOU IS TO WAIT AND WATCH TILL HE RECOVERS OR PASSES AWY. BUT RETAIN YOUR POSSESSION DO NOT LET THEM INTER INTO POSSESSION.
Raj Kumar Makkad
(Expert) 05 October 2011
there is no reason to differ with the opinion of all experts on this point.
