Unregistered will
Gayatri Gayatri
(Querist) 26 March 2013
This query is : Resolved
Dear Sir,
I got a property from my ancestors through an Unregistered will. It was written on my name even before I was born. My grand mother wrote in the will 'My Sons son will be the owner of the property'. and I got the property by virtue of this. I dont have any other siblings.
Now I am a grown up.I am married and having children.
Tell me the best way to transfer the property to my legal heirs. Why I am asking this is, recently when I want to go for some housing loan, Bank people are saying that they are going to give loans only based on gift deeds only (not for unreigstered wills).
can some one suggest me the best way to go.
Arvind Singh Chauhan
(Expert) 26 March 2013
bank is right as you only are the owner of property until your death and your son has no ownership. Your son may get ownership only through gift or sale deed during your life time.
Gayatri Gayatri
(Querist) 26 March 2013
Aravind Sir,
Shall I give gift deed to my children then based on the unregistered will through which I got the property.
If I execute a gift deed on name of my children, Can I get housing loan ?
Arvind Singh Chauhan
(Expert) 26 March 2013
If your grand mother has died property would have been transferred to you. And If you are asking loan there is no problem, no gift deed is required.
If your grand mother is alive and she is the owner of property. Your grand mother will have to gift property to you or to your children, whoever is asking loan.
Your query is confusing on the point your are asking for gift to your children. Who is asking loan you ? or your children?
Gayatri Gayatri
(Querist) 26 March 2013
its me who is asking for the loan. my grand mother died long back after which I got the property.
Adv k . mahesh
(Expert) 26 March 2013
now you go for probate on your name which gives from the court
Gayatri Gayatri
(Querist) 26 March 2013
Dear Mahesh Sir,
Can you pleaes let me know
1) What is this Probate
2) How does it help me
3) Expenses involved with it etc
"now you go for probate on your name which gives from the court "
Advocate Ravinder
(Expert) 26 March 2013
Normally, even the unregistered will is valid and the interest of the property will be transferred completely to you on the date of death of your grandmother to the extent she gifted to you. But the problem is that the Bank people will not believe and accept this type of documentation. They definitely ask for better proof of title. You can convince the bank people. You can give them indemnity bond and guarantee or security, i.e. in case there is any dispute with regard to the unregistered will, the bank people can claim the security.
Or in the alternative, you can file a suit for declaration making the interested family members and all concerned as parties to the suit. Thus the title will flow upon you. Later if you can do whatever you want. You can directly apply for loan or you can gift the property to your family members.
You have not mentioned about the property stated in unregistered will i.e. whether it is movable or immovable. The above explanation relates to immovable property. Whereas for movables some states are insisting to file probate order case. Probate means unless the court permits the movable properties will not be transferred in your name.
Devajyoti Barman
(Expert) 26 March 2013
Making gift deed in the name of your legal heirs would be the best option.
Gayatri Gayatri
(Querist) 26 March 2013
Barman sir, which is the best option. doing gift deed on my wifes name or childrens name ?
ajay sethi
(Expert) 26 March 2013
dont amke a gift deed of your property . you must keep property in your name only . do not know whether your children will staill care for you after transfer of property in your name .
better option is go in for probate of will . it is judicial proof that will is genuine . contact a local lawyer .
Raj Kumar Makkad
(Expert) 26 March 2013
Nothing to add in the detailed discussion.
prabhakar singh
(Expert) 27 March 2013
I have to say too much about the very "Will"you are talking about.
From times immemorial, the owner of the property has a vested right in him to deal with it in accordance with his discretion. The right of disposition or alienation, which is coexistent with a right of ownership, is so absolute that it is easy to comprehend the potential force of that right. But equally salient and time honored is the well-known rule against perpetuity which is based on public policy which necessarily had to make certain dents on the exercise of such absolute power in case it is sought to be abused.The Rule against Perpetuity has its roots in early English common law, in a 1682 opinion crafted by Lord Nottingham—The Duke of Norfolk’s Case.
Hence the WILL(unless examined closely) seems to have offended the RULE OF PERPETUITY when it was made to you when YOU WERE NOT EVEN BORN.Under the rule laid down in Tagore v. Tagore(18 W.R., 369) "no interest could be created in favor of unborn persons"and section 14 of Transfer of property Act incorporates it as legislated.
Perpetuity-In its modern sense it is concerned with interest created in futuro and not with interest created in presenti. This legal word or term of an art, is limiting an estate either of inheritance or for years, in such manner as would render it inalienable longer than for a life or lives in being at the same time and some short or reasonable time thereafter.
In Raj Bajrang Bahadur Singh vs Thakurain Bakhtraj Kuer the Supreme Court while deciding a case on a WILL laid that Though under the rule laid down in Tagore v. Tagore (18 W.R., 369) no interest could be created in favor of unborn persons, yet when a gift is made to a class or series of persons, some of whom are in existence at the time of the testator's death and some are not, it does not fail in its entirety ; it will be valid with regard to the persons who are in existence at the time of the testator's death and invalid as to the rest.
Further the intended transfer in favour of A’s first and the second son is opposed to public policy since it could prejudice the other relations.
To make a transfer in favor of unborn persons valid(13 T.P.A), the prior interest created by the transfer should not be contingent but vested interest.
In the instant case, the possibility of getting male child could be a remote possibility and can only be termed as a contingency.
The principle of Section 13 is akin to Section 113 of the Indian Succession Act. Section 113 of the Indian Succession Act deals with transfer in favor of unborn persons which provides that where a bequest is made to a person not in existence at the time of the testator's death, subject to prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. If the beneficiary is not in existence at the time of the testator's death, the bequest is void under secs.,112 and 113 of Indian succession Act. Section 114.of this Act deals rule against perpetuity.
Hence I would like to advice you to get first checked the legality of your WILL,only then conclude to do about "how to proceed"else applying for probate or Letters of administration may land up you in unnecessary "frustration".
Better to take a simple case of succession.Your father succeeded his mother.you succeeded your father,having no siblings,you are exclusive owner,and can make a gift directly,best with no reference to will,to any body you choose better in your circumstances,for bank loan purposes,which bank would give only to a earner of income.
Ajeet
(Expert) 31 March 2013
dear prabhakar ji is correct. you have mentioned two points
bank denying for loan just you don't have deed, and if you make a gift they accept it. here you r under misconception if your title is doubtful how they accept successive title.better to show your rights through succession if other claimants are not available on the basis of succession this doesn't require any deed.revenue records, municipal records, bills though not title deeds but corroborate your possession/ownership.for mortgage you may offer them simple mortgage which does not require deeds for deposit(equitable mortgage).alternatively probate or letter of administration is way if other claimants are available.
