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Robert   02 August 2020

Re: implication of clauses in will


Per the registered final Will of my late grandfather, the land he owned in Kerala was bequeathed to me and my brother for us to jointly own after his death. However, the added the following conditions in the Will:

1. You both shall take joint possession of the land after my death and pay the property taxes

2. I do not grant you the right to sell the land to a third person or entity

3.  In case one of you needs to sell his half due to some hardship, then you can only sell the land to your brother

4. If either one of you decides to sells your half to a third person or entity, then your brother has the right to challenge the transaction and have it deemed null and void

We are not sure what the above clauses in the Will means to us in terms of selling the land as we both do not live in Kerala and do not intend to live there in the future. We both would like to sell the land and split the proceeds, but not sure if the terms above will let us do that. Can someone please provide us with some guidance on how best to proceed to enable us to sell the property, if that's possible? 

Much appreciated,



 8 Replies

Dr J C Vashista (Lawyer)     02 August 2020

Whether the will has been challanged or not ?

If not, the property is self-acquired in your hands and you may sell it ignoring and defying wish of your grandfather.

Robert   02 August 2020

Dr Vashista,

I truly appreciate your response. The Will was challenged by an aunt, who is my grandfather's daughter from his second marriage. She had alleged that my grandfather was not of stable mind when be made the will. She lost the case and also the appeal. This was more than 15 years ago. At present there is no pending litigation  challenging the will. 

Thanks and Regards 


G.L.N. Prasad (Retired employee.)     02 August 2020

Infact such restrictions on transfer is not legally tenable once the property is bequeathed and as both co-sharers have a consensus on such sale.  Take legal opinion from a local expert and finally go for a long term lease up to 99 years to overcome such clauses. (The right to challenge was vested with only one brother and if both brothers agree for sale, there is no one to challenge, particularly after 15 years of such judgment.   Even if the will is ignored from last 15 years you were in possession and enjoyment and can even claim adverse possession even if the will is ignored.  

P. Venu (Advocate)     02 August 2020

The facts posted and subsequent clarification reveals that the property absolutely vested with you and your brother. As regards  the condition attached to the Will, it only prevents one of the beneficiaries selling the property to a third party in preference to the co-beneficiary. The said condition does not prevent both the beneficiaries joining together and selling the property.

Robert   02 August 2020

Thank you Mr. Prasad. I greatly appreciate your thoughts on this matter.




Condition Nos.3 & 4  incorporated in the Will (as per your query above) are self-explanatory.  When both of you are willing to sell the property in question, these conditions are not applicable at all and as such, I am of the opinion that you both of you  can   sell the property to third person.

Robert   02 August 2020

Thank you very much, Mr Venu and Mr Jose. Now I feel like there is some hope. One thing I forgot to mention is that there is an additional clause in the Will which says the following:

"All provisions in this Will will come into effect only after my lifetime (our grandfather, the testator) and  the lifetimes both of your parents"

It's obvious that the will comes into effect upon the death of my grandfather (the testator). Our father passed away 10 years ago and mom is alive and stays with me in Mumbai. She is aged and has several health issues. She is quite anxious about the property and wants to see it transferred to my and my brother's names. Is it possible to have the property transferred to our names while my mom is still alive? If so, how do we go about getting it done?


Thanks for all your help and guidance


G.L.N. Prasad (Retired employee.)     02 August 2020


You have raised a fresh issue.   There is absolutely no bar in getting the property in your name through mutation and also through family settlement.  In case of issues, your advocate can suggest joining your mother as a witness for your settlement deed.

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