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prabhu   08 October 2016

Contesting the will

Hindu family

A- father, B- wife, C-son1, C1- daughter of C, D-son2, D1- Wife of son2, D2- son of son2, E - a daughter.

 

A self - acquired 12 acres of land. A died in 1997 leaving behind legal heirs wifeB, Cson1, Dson2. So each of the 4 legal heirs is entitled to 3 acres each.

D(son 2 with inherited property of 3 acres) died in 2000 leaving behind legal heirs B mother, D1- wife and D2 son. Each of the legal heir is entitled to 1 acre.

So B(wife of A and mother of D) is entitled to 4 acres from 2000.

D1 and D2 sell 5 acres through a registered deed in 2008 to X eventhough they are entitled to 2 acres in total.

B writes 2 wills in favor of C1(daughter of C) - first is a registered one for 3 acres inherited from A as his wife; 2nd is an unregistered on for 1 acre which she inherited from D as his mother.

B died in early 2016

Now my questions:

1) is the sale deed by D1 and D2 to X valid as they sold more than they are leglly entitled to?

2) if the sale deed is valid, Can X contest the wills written by B in favor of C1? ( both D1 and D2 are interested in the dispute anymore as they have sold their share already)



Learning

 23 Replies

Adv. K.S.A.Narasimha Rao (legalquestadvisor@gmail.com )     09 October 2016

Your are required to redraft your question as there is some ambiguity.

Ms.Usha Kapoor (CEO)     09 October 2016

d1 AND d2 ARE ENTITLED TO ONLY 2 ACRES OF LAND. tO TH EEXTENT OF 3ACRES THEY CAN'T PASS  A VALID TITLE IN FAVOUR OF THE PURCHASER. hence dAUGHTER  CAN FILE  A PETITION TO SET ASIDE SALE TO THE EXTENT OF excess 3 ACRES AND  REDCOVERY OF REMAINING  3ACRES FROM THE PURCHASER OF D1 andn D2.

B's WILL in respect of 3 acres inherited by her from her husbandin favour of her daughter through  a registered willi's valid or registered  bequest is legally vlaid. Regarding transfer of 2nd bequest  through an unregistered WILL of 1 acre land is  alsolegally valid for ii isnotmandatory  that  awillshould be registered to bequeath. However if  she registers it  it will be better and then let her bequeath under registered will.If you  appreciate this  answer please click the thankyou button on this forum.

1 Like

prabhu   09 October 2016

@Ms. Usha kapoor. Thank you for your reply.

 

Can X(the purchaser) contest the will in court while executing it?

prabhu   09 October 2016

@Ms. Usha kapoor. Thank you for your reply.

 

Can X(the purchaser) contest the will in court while executing it?

Kumar Doab (FIN)     09 October 2016

>>> Is B alive? Confirm.

The WILL shall operate only after death of B.

 

>>> The property is located in which state and city?

The land is agriculture/Non agriculture?

Is daughter E married?

It is mandatory to probate the WILL in presidential towns.

In some states e.g; UP and Uttranchal/Uttrakhand carved out from erstwhile UP; married daughters  are not entitled for share i agriculture land, until or unless state govt. reverses the position by a valid rule/law.

 

>>> D1 and D2 can not sell more than they own.

Therefore all other heirs that are affected can proced against  D1 and D2 and X.

 

>>> X has not paid any consideration to anyone other than  D1 and D2.

So on what count Xis contemplating to procd against B.

 

All or any ClassI legal heir may obtain legal hier certificate and death certificate of  A and submit to authority under whose jurisdiction property falls and mutate the inheritance and obtain mutation record with all link documents.

 

Similarly lega hier certificate and death certificate of  D may be submitted and mutate the inheritance and obtain mutation record with all link documents.

 

If B is not alive the certified copy of WILLs (1 & 2) and death certificate of  B be submitted to act upon and mutate the inheritance and obtain mutation record with all link documents.

 

Thus the position in mutation record and whole case shall be clear.

 

 

 

 

1 Like

Kumar Doab (FIN)     09 October 2016

After the mutation record is duly updated; there shall be no defect in share (3+1=4 acres) of B.

prabhu   09 October 2016

@kumar doab. Thanks for your reply.

 

The land is agricultural located in Tamilnadu.

B died in Feb 2016.

X says he is entitled to 5 acres and that the wills are not valid,

Kumar Doab (FIN)     09 October 2016

What X says or states; does not matter.

What anyone else  says or states; does not matter.

 

The record matters.

It is a private transaction between X and D1 and D2.

X has not paid any consideration to anyone other than  D1 and D2.

 

 

Kumar Doab (FIN)     09 October 2016

Buyer Beware; is applicable in property deals.

 

It is mandatory to probate the WILL in prsdential towns; Chennai,Mumbai,Kolkotta.

Refer to local agricultural land rules.

Succession opens upon date of death of owner!

 

You are on which side : X or others?

 

 

prabhu   09 October 2016

@kumar doab. Thanks again

The property is not in any of the presidential towns

I am on C1 sdie. Both C, C1 and E are together, E has filed a partition suit against c, c1, d1, d2 and x stating all the facts.

d1 and d2 has not filed vakalats. They are not interested in this case. They dont want to be part of the proceedings

Now should C1 probate the wills? can X contest the unregistered will alleging that the will is not genuine?

Kumar Doab (FIN)     09 October 2016

ClassI Legal heir certificate and death certificate of  A, D need to be submit to authority/revenue official, under whose jurisdiction property falls, for recording inheritance in mutation record.

Thus there shall be clear share of each ClassI Legal heir.

Thus should reflect that D1+D2 never had =5acres.

 

Hence concerned authority/revenue official e.g; say Patwaari, may decline to do mutations ( say Intkaal) based on sale deed of X.

 

Certified copies of WILLs ( 1&2) of and death certificate of B need to be authority under whose jurisdiction property falls, for recording ownership in mutation record. The revenue official may ask legal heirs of B to sign NOC for WILLs or may ask to release advt in 2 newspaper inviting objections. If not objected thn authority may act upon the WILL, as there is no cloud on WILL.

If X objects then answer is that X never conducted due diligence before buying and D1+D2 never had =5acres.

 

If WILL is snt for probate then registered WILL is not easily set aside on the counts of authenticity as testaor has personally appeared before registering authority. Unregistered WILL can also be proved as valid.

 

 

 

 

 

 

Kumar Doab (FIN)     09 October 2016

The estate of Hindu female ( self acquired/earned/absoloute) devolves upon her sons and daughters and husband.

 

If sons and daughters are not alive then on heirs of husband if estate was acquired from husband's side.

 

Assuming for a moment:

The WILL 2 is   proved as invalid; 1 acre shall devolve upon her sons and daughters, as husband has deceased.

 

The WILL 2 is   proved as invalid; 3 acre shall devolve upon her sons and daughters, as husband has deceased.

Even then D1+D2 never had =5acres.

Kumar Doab (FIN)     09 October 2016

D1+D2 have sold what they did not own; so how can then be spared and stay away from the case?

 

1 Like

prabhu   09 October 2016

As d1 and d2 will not get any benefit out of this case, they are not interested to spend money for advocates.

D1 and D2 are semi-literate. They didnt know their share. It was X who persuaded them sell their share to him. He told them only sons are entitled to father's properties. So they are entitled to 6 acres and asked them to sell 5 acres to him. The sale deed says the sale was for Rs. 5 lakhs but he actually paid only 1.5 lakhs to them.

The sale happened in 2008.

Can D1 and D2 challenge the sale alleging that X chetaed them?

Also, an oral settlement happened between C(son1) and D(son2) in 1997 in which D relinquished his share to C for rs 2 lakhs. But there is no record for payment or settlement. D died in 2000.

Now both D1 and D2 are willing to side with us(c, c1 and E) if they get some 'consideration'. They are willing to say in court that oral settlement did happen.

If they did so, can X proceed against D1 and D2 alleging fraud?

 


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