Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Ravi Prasad (Student)     02 November 2009

Registered Will - is probate must

A Known person has left a will which is registered in Sub registrar office 5 years back. one of the witness is now dead and the other is hostile. Is obtaining a probate must for a registered will as the Khata has already changed on the basis of the will. The case is pending for ejectment of the tenant.



Learning

 31 Replies

Ravi Prasad (Student)     02 November 2009

Continued the question: Can the tenant question the validity of the will ?

A V Vishal (Advocate)     02 November 2009

Will can be revoked and/or substituted by the testator any number of times at his prevail. However, all subsequent wills should clearly state that ‘this is the last’ will prior to the date and at the time of the present instrument. The instrument of will can also be registered with the Sub-registrar of Assurances and then the registered will takes precedence over the unregistered will even though the same may have been drawn at a subsequent date and is stated to have revoked all previous wills. Because, a registered will can only be substituted by a registered will.

Probate of will is a legal process in which the court of adjudicature certifies the authenticity of the will under their court seal and hands it back to the executor. Though it is not mandatory that every will should be probated, it is advisable to do so to ensure that the acts and deeds performed by the executor of the will cannot be challenged at a later date. Thus all actions taken by the executor acquire stamp of legality and can be defended in a court of Law. Courts will not entertain suits pertaining to wills unless the will in question has been probated.

1 Like

Ravi Prasad (Student)     03 November 2009

Thank You. In this case, the tenant has remarked that the will is not genuine. Can he question that when all other successors are silent. In another case, the same will is accepted by the Court exparte. Please clarify

1 Like

A V Vishal (Advocate)     03 November 2009

The tenant has absolutely no right to claim the genuineness of the will more so when the same has been accepted by the court.

1 Like

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 November 2009

1.  A  "Will"  is prepared by the owner of the properties, for the benefit of the  "legal heir apparent"  and also (if included) his friends, organisations, charities etc.
If the will is duly registered in the life time of the will-maker, then "hostility" ot "death" of all the witnesses is legally a  "no issue".
 

2.  A "Will" being a family property affair with ancestral implications,  can be challenged  ONLY & ONLY by the legal heir apparent and  never by an outsider than the ancestral related heir tree.
 

3.  The tenant being an  "alien" to the  family ancestral related heir tree,  can never ever challenge the contents of the will,  unless he himself produces a latest registered will favouring him (as beneficiary) in the will.
 

4.  The issue of  "Probate"  is a state law  AND in some states, the state govt's have exempted the  probation of "will" (eg. rajasthan).  However all the "presidency towns" of India, have to compulsorily  "probate"  the will for execution purposes (eg. Bombay, Delhi, Madras, Calcutta etc...)
 

5.  In case of internal disputes or disputes between the beneficiaries of the will,  the probate of will becomes legally long-term beneficial (as suggested by Adv.Vishal, above)
 

6. BUT if the tenant is the beneficiary of the "latest registered"  will,  the tenant can right'fully challenge the validity & contents of the will,  EVEN IF ANY OTHER EARLIER REGISTERED WILL IS UNDER OR ALREADY CONSIDERED OR ACCEPTED BY THE COURTS.
 

Keep Smiling .... Hemant Agarwal

2 Like

(Guest)

i agree with u'r views hemant sir

1 Like

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     03 November 2009

The relation of landlord and tenant is only to be seen in the ejectment petitions and ownership has nothing to do in such cases. However, will is required to be duly probated as required under law but teanat cannot raise such questions.

1 Like

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 November 2009

EXAMPLE :
 

a)  Suit filed for eviction of tenant, from property named as "ABC"
 

b)  The Owner dies, after filing suit, but has made a registered Will, in his life-time, bequeathing his "ABC"  property to say Mr. Golmal,  a non-heir (presuming). and rest "EFG" property to "XYZ" his real Son (legal heir).
 

c) The tenant holds "ABC" property, in lawful possesion.  The deceased owner HAD filed suit for tenant eviction from this  "ABC" property.
 

d) The new apparent owner Mr. Golmal, derives right of property, suit and title,  "ONLY & ONLY"  after the will of the deceased has been "probated" and not before the probate.  Effectively,  he does not derive any right even to represent the "ABC" property in ANY court of law, before the "probate" procedures and orders of the competent court, favouring Mr. Golmal.
 

e)  It will be a Violation of Law, if Mr. Golmal takes of right of property, suit and title, and commences any legal proceedings (eviction, sale, lease, etc...) without having the will "probated" which is mandatory in presidency towns.
 

f)  Now the new apparent-owner Mr. Golmal, seeks to continue Eviction proceedings against the tenant in the matter of "ABC" property,  without having the deceased's will probated, specially so in terms of "ABC" property.
 

g)  HERE  MR. GOLMAL,  is a "legal nobody"  as far "ABC" property is concerned, since he has not probated the will and hence has not derived any legal right to property, suit and title. HENCE MR. GOLMAL WILL BE ACTUALLY  "MISREPRESENTING"  AS OWNER in the court, in a eviction suit in which he has no legal status or say standing.
 

h)  ONLY a registered and legal owner, can file eviction proceedings.  Here Mr. Golmal, is NOT THE LEGAL OWNER of the property, till the property rights has been transferred to his own name, via a probate order.
 

i)  IF the Tenant,  objects and requests the court to take congnizance of such "violation of law", that is the will is not probated by the beneficiary of the property and that such beneficiary does not derive any legal right for eviction proceedings, till the probate is in the favour of Mr. Golmal.
 

j)  The Court is bound to keep the matter in abeyance,  IF THE TENANT OBJECTS as suggested above.
 

k)  Hence it can be seen from the above example, that a Tenant has complete right to object in the execution of the will, citing Violation of Law, specially more so when the tenant himself is not a beneficiary, in a Tenant Eviction suit.

 

 

1.  If the Judiciary is pointed that the matter under the judicial consideration, is in Violation of certain Laws, procedures,  THEN the judiciary is not entitled to continue consideration of the matter.  It will result in  "Bad or Invalid" justice and will be against the principles of Natural Justice.

 

2.  Anybody (even a non-party like a tenant) can ask the court to take suo-motto cognizance of such violation of law, in the matter instant and place objections,  which the judiciary is duty-bound to take cognizance and hold the matter in abeyance, till rectification of any Violation of Law.

 

3.  If a Will is mandatorily required to be  "probated" and has not been done,  THEN it is a "Violation of Law",  which even a non-party like a tenant, can request the court to take cognizance, before hearing the actual matter.

 

Keep Smiling .... Hemant Agarwal


 

2 Like

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 November 2009

EXAMPLE :
 

a)  Suit filed for eviction of tenant, from property named as "ABC"
 

b)  The Owner dies, after filing suit, but has made a registered Will, in his life-time, bequeathing his "ABC"  property to say Mr. Golmal,  a non-heir (presuming). and rest "EFG" property to "XYZ" his real Son (legal heir).
 

c) The tenant holds "ABC" property, in lawful possesion.  The deceased owner HAD filed suit for tenant eviction from this  "ABC" property.
 

d) The new apparent owner Mr. Golmal, derives right of property, suit and title,  "ONLY & ONLY"  after the will of the deceased has been "probated" and not before the probate.  Effectively,  he does not derive any right even to represent the "ABC" property in ANY court of law, before the "probate" procedures and orders of the competent court, favouring Mr. Golmal.
 

e)  It will be a Violation of Law, if Mr. Golmal takes of right of property, suit and title, and commences any legal proceedings (eviction, sale, lease, etc...) without having the will "probated" which is mandatory in presidency towns.
 

f)  Now the new apparent-owner Mr. Golmal, seeks to continue Eviction proceedings against the tenant in the matter of "ABC" property,  without having the deceased's will probated, specially so in terms of "ABC" property.
 

g)  HERE  MR. GOLMAL,  is a "legal nobody"  as far "ABC" property is concerned, since he has not probated the will and hence has not derived any legal right to property, suit and title. HENCE MR. GOLMAL WILL BE ACTUALLY  "MISREPRESENTING"  AS OWNER in the court, in a eviction suit in which he has no legal status or say standing.
 

h)  ONLY a registered and legal owner, (or a POA holder) can file eviction proceedings.  Here Mr. Golmal, is NOT THE LEGAL OWNER of the property, till the property rights has been transferred to his own name, via a probate order.  Hence Mr. Golmal cannot represent or persue the eviction proceedings against the tenant.  The tenant can object to this representation.
 

i)  IF the Tenant,  objects and requests the court to take congnizance of such "violation of law", that is the will is not probated by the beneficiary of the property and that such beneficiary does not derive any legal right for eviction proceedings, till the probate is in the favour of Mr. Golmal.
 

j)  The Court is bound to keep the matter in abeyance,  IF THE TENANT OBJECTS as suggested above.
 

k)  Hence it can be seen from the above example, that a Tenant has complete right to object in the execution of the will, citing Violation of Law, specially more so when the tenant himself is not a beneficiary, in a Tenant Eviction suit.

 

1.  If the Judiciary is pointed that the matter under the judicial consideration, is in Violation of certain Laws, procedures,  THEN the judiciary is not entitled to continue consideration of the matter.  It will result in  "Bad or Invalid" justice and will be against the principles of Natural Justice.

 

2.  Anybody (even a non-party like a tenant) can ask the court to take suo-motto cognizance of such violation of law, in the matter instant and place objections,  which the judiciary is duty-bound to take cognizance and hold the matter in abeyance, till rectification of any Violation of Law.

 

3.  If a Will is mandatorily required to be  "probated" and has not been done,  THEN it is a "Violation of Law",  which even a non-party like a tenant, can request the court to take cognizance, before hearing the actual matter.

 

Keep Smiling .... Hemant Agarwal
 

2 Like

Darshan Sharma (Lawyer-cum-detective)     03 November 2009

I fully agree with comments of Hemantji. However, a witness cannot so easily deny or backout from the matter witnessed by him and is liable for turning hostile, particularly, in this case of registered will affecting the interest of the willed as inheritor.

1 Like

Daiyan Hussain (advocate)     03 November 2009

It is well settle in Law that no will is required to be get probated in Delhi.

Anil Agrawal (Retired)     08 December 2009

 O.K. But, if somebody files a will for probate in Delhi, will it be thrown out as non est.

Anil Agrawal (Retired)     08 December 2009

 Continuing ...

Wills not to be probated in Delhi?

In the following case, District Judge granted Letter of Administration on probate of the Will.

CASE NO.: Appeal (civil) 34 of 1995 Appeal (civil) 5424 of 1999 PETITIONER: Delhi Development Authority Delhi Development Authority RESPONDENT: Vs. Mrs. Vijaya C. Gurshaney & Anr. Nanak Chand DATE OF JUDGMENT: 26/08/2003 BENCH: S.N. VARIAVA & H.K. SEMA.

Has the law changed since then?

Ramesh (na)     11 December 2009

Is it necessary to probate the will in the state of Andhra Pradesh?


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