Execution of Will


My father purchased a piece of Freehold land and built a house on it in 1974. This plot of land as well as the cost of constructon was financed by my father from his own earnnigs. This can also beverified from his Income Tax return filed by him and accepted by the Tax Authoritis. However in the Municipal records he got this propery registered in his and my mother's joint name.

He made a will which is registered in which he has declared that the property though registerd in his and his wife's name but since it was obtained rom his earnings is his and therefoe bequethed by him to his two sons. My question is :- In the Law can my father bequeth the property totally even though it is registered in his and his wife's name?

Will be grateful for a considered opinion

Vinod

 
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well definately even in case it would have not been in your mother's name and for e.g. say

A' has self earned property he transfers it ti 'B' wife, then wife can given it to any one as per his husband will.

as forefather's property has defination that you father must have received from his father.

in your case your father together with your mother can given it to two brothers.

but say if your father has expired and then as it is in joint name of mother then it should be your mothers decision to divide the said property accordingly.

regards,

 
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Advocate

Here the conflicts is between Municipal records and the Will by the true owner that is the Father who is the sole owner earned through his individual earning of the said property bequethed to you. Just because the Municipal records show joint ownership it can not override the sole ownership that is the father, as registration is not conclusive proof of ownership and further evidence is required to prove ownrship, and in the absence of Gift to your mother by your father, if it is prove that the property belongs to your Father alone mere entry in Municipal record can not disturbed the dead man wish that is His will bequethed to you as the sole owner. Thank you for rising this very important and interesting query.

 
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Advocate Gulammayudin A. Gagdani &

Advocate N.K.AssumiI am Online

 Thanky both fo immediate response. However I would like to cklarify that the property in question is self acquired property and not ancestral propert. Neither my fther gifted it to my mother. In fact n the will he has clarified this point and has further gone to say tat our mother can use the property the ay she likes for staying or letting it out for rent and after her death it would go to the two sons.In such a senario hat oud be th situation.

Thanks once again

 
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then in such scenario property rights will be with your mother, then with two sons i.e. after death of your mother.

Regards,

 
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Thanks for your advice

 
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In my view, the fact that the fact that the property is registered  [with sub registrar] in the joint name of you father and mother is a prima facie evidence that both are the joint owners but the same can be rebutted by other evidences. This is a subjective issue and weightage has to be given to evidences. Further, your father has created a life interest in favour of your mother whereby she doesnt have the right of alienation. you have vested right but the same is postponed till your mother is alive. In my view, apart from the Income tax return, if there are any other evidences showing the share of your father and mother, then your mother has right of alienation over such property relating to her share. In other case, your father will will stand valid

 
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