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Heta Vaishnani   20 December 2018

Indian Succession Act

A father of X dies. He leaves a will behind. The will states that all the property should be divided among X, X's wife and daughter.

X has two brothers and two sisters.

Can X and his wife and daughter claim his property without brothers and sisters consent?


 11 Replies

Bhagat Bhai   20 December 2018

yes..

if will is registered
1 Like

Vijay Raj Mahajan (Advocate)     21 December 2018

Will has to be probated in the Civil Court that will decide validity of the Will. The other heirs of the testator have right to challenge the Will and Civil Court decide the validity and if found valid it issue letter of administration to the beneficiaries. If the brother and sisters of X want to challenge the Will they may but the actual heirs of X by all means are his widow and children for whom Will is made. No consent required from anyone for making Will or executing it by anyone. It's matter between testator and beneficiaries.
1 Like

Siddharth Srivastava (Advocate)     21 December 2018

self earned and owned property of X can be bequeathed through WILL and property devolved to named persons only.
1 Like

Dr J C Vashista (Lawyer)     22 December 2018

I agree and appreciate expert advise of Mr. Vijay Raj Mahajan and Mr. Siddharth Srivastav.

Where is the property located?  Accordingly it would be decided whether probate is mandatory or not.

The testator has all his rights to bequeath his self-acquired property in the name of anyone, it is valid, even if it is unregistered.

Show the will to a local prudent lawyer for better appreciation of document, guide and proceed.

Siddharth Srivastava (Advocate)     22 December 2018

True as said by Dr. J.C. Vashist. In Union territories like Delhi, Chandigarh, Andaman Nicobar etc. there is no requirement of obtaining probate.

Kumar Doab (FIN)     25 December 2018

Which personal law applies in your case?

Are all involved Hindu?

What is the nature of property dispoded by WILL; self earned/acquired, ancestral in the hands of deceased testator?

The said property is in which state?

Is the WILL of deceased i.e. father of X as in query, registered?

Is IT priveliged WILL?

Is entire property of deceased testator disposed by WILL?

Has your own very able LOCAL counsel specializing in testamentary succession matters opined that said WILL is valid? Is the opinion of counsel in writing? Have you paid any FEE?

Confirm!

 

Kumar Doab (FIN)     25 December 2018

X, his wife, his daughter can very well claim the property bequeathed by WILL and don’t need any consent of anyone including the brother and sister of X (as in query) !

The beneficiaries in the WILL can submit the WILL to O/o jurisdictional authority under whose jurisdiction property falls e.g; MC, per procedure of testamentary succession and submit requisite forms with requisite annexures etc

 

 

Understand the basics;

IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.

IT is not mandatory to probate the WILL in other areas. IT is not mandatory to register the WILL.

The WILL should just be valid. Unregistered WILL can be acted upon.

The last valid WILL prevails.

A registered WILL is not easily set aside atleast on counts of authenticity.

 

The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.

 

If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.

If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.

Check locally and comply with procedure. Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by Testamentary succession/ inheritance/probate in the name of legal heirs in mutations records.

Thereafter obtain copy of updated mutation records.

The legal heirs may also consider perspective of registered  family settlement after the WILL and register it.
For partition by boundaries (amongst beneficiaries and even others as per facts of the matter and/or settlement) either decide amicably (best recourse) or take help of other elders of the family or panchyaat or court of law..

If WILL is not submitted to be acted upon then it becomes matter of succession per personal law that applies.

Although it is wrong since the WILL exists.

Check locally and comply with procedure and thus initiate the action./procedure!

Kumar Doab (FIN)     25 December 2018

Vashistaji,

Postor at 4th/6th post has casted the onus on you to write for Act provisons in said Union Territories!

It is probbaly missed when lawmakers inserted IT !

 

Pls post about IT. 

 

Kumar Doab (FIN)     25 December 2018

 

 

Central Government Act

The Indian Succession Act, 1925

2(f) "probate" means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator;

 

3. Power of State Government to exempt any race, sect or tribe in the State from operation of Act.

 

213. Right as executor or legatee when established.—

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. 2[(2) This section shall not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or and shall only apply—

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the 4[ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.]

 

THE INDIAN SUCCESSION ACT, 1925 ACT No. 39 OF 1925 1*

An Act to consolidate the law applicable to intestate and testamentary succession 2*;

 

-----------------------------------------------------------------------------------------

1 The Act has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and to Manipur by the Union Territories (Laws) Amendment Act, 1956 (68 of 1956). Extended to and brought into forco in Dadra and Nagar Haveli (w.e.f. 1.7.65) b Reg. 6 of 1963, s. 2 & Sch. I.

2 The words "in the Provinces of India" omitted by the A. O. 1950.

CHAPTER I Of Grant of Probate and Letters of Administration

219. Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person; -If the deceased has died intestate and was not a person belonging to any of the classes referred to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:--

 

220. Effect of letters of administration.-Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.

 221. Acts not validated by administration.-Letters of administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate's estate.

Kumar Doab (FIN)     25 December 2018

 

The ACT does not put any embargo on probate of WILL in Union Territories.

Nor the citations…

The Act and citations are clear.

 

few things may be forgotten at times.

Kumar Doab (FIN)     25 December 2018

In the menatime go thru;

 

 

 

Supreme Court of India

Clarence Pais & Ors vs Union Of India on 22 February, 2001

Author: R Babu

Bench: S. Rajendra Babu, R.C. Lahoti

           CASE NO.:

Writ Petition (civil) 137  of  1997

Writ Petition (civil)           674         of  1998

The effect       of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section       57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of January, 1927 which does not relate to immovable property situate within   the territory formerly subject to the Lieutenant-Governor of Bengal          or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay,   or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans.

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

Date of Judgment: 10.03.2011

RSA No. 92/2009 & CM Nos. 10095/2009 & 10096/2009 SH. RAJESH ………..Appellant Through: Mr. Gurbhansh Singh, Advocate. Versus SMT. MUNNI DEVI ……….Respondent. Through: None. CORAM: HON'BLE MS. JUSTICE INDERMEET KAURs

7… It is also an admitted case that in Union Territory of Delhi, probate of a will is not mandatory.

 

 

Delhi High Court

Krishna Sobti vs State on 17 May, 2016

$~

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment reserved on : 21.04.2016

                   Judgment delivered on : 17.05.2016

 

 

+      C.R.P. 192/2015

Additional submission being that the properties left behind by the deceased fall within the local limits of Delhi and since admittedly in the Union Territory of Delhi, a person is not required to obtain a probate of a Will, his application seeking a grant of a succession certificate would also not require the Will to be probated. 5 Learned counsel for the petitioner in support of his proposition has placed reliance upon AIR 2001 SCC 1151 Clarance Pais & Ors. Vs. Union of India


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