Probate of Will & Partition

G.Padmanabhan (Querist) 12 March 2010 This query is : Resolved
Would our experts clarify on the following issues in respect of a will?

(A) A testatrix makes a will in respect of a property ownership of which did not vest in her either at the time of making the will or at the time of her death. The property was allotted to her by a housing board. The property was held by her on lease cum sale basis, and the consideration amount was to be paid over a period of 10 years. After receipt of full payment, the Board would execute the sale deed. An agreement of lease cum sale is entered into between the board and the allottee. As per the terms of the agreement, the Board could rescind the allotment if there are outstanding dues or for breach of any other terms therein. The ten year period is up, and there are still unpaid dues. The testatrix makes a will in favour of one of her 6 legal heirs and dies. The board has sent a due notice with a warning that the allotment would be revoked if the dues are not paid within a time limit. Is such a will capable of being probated? The other legal heirs are unlkiely to give consent for the probate.

(B)The other legal heirs have filed a suit for partition? Is the suit maintainable in the light of the above facts?

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Raj Kumar Makkad (Expert) 12 March 2010
As the property is self acquired though it has still to be registered yet in the given facts will is legal and it should be got probated through competent civil court and the suit filed by other legal heirs of the deceased seeking partition of the property is not maintainable in the light of will.

Even if money is still unpaid with Housing Board, even then will is legal and the matter is only between the Board and allottee and it has nothing to do with the execution of will.