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M.Singh ( )     20 January 2009

Transfer of land ownership with overseas Will and Probate


My father died outside of India in 1993. He had lived overseas for over 50 years and owned land overseas and at his village located in Punjab.

He left a will in favour of my mother who is also the Executor of the will. She was born in India but has been an overseas citizen for the last 30 years and currently lives overseas. My father wanted my mother to receive ownership of all of his land in India upon his death. My father had four children from his first marriage but they were not left with any property in the will.

My mother applied for overseas Probate in 1998 and was granted this by the Supreme Court. The Probate and Will were uncontested by any of my father's children.

My mother recently visited India to change the ownership of the land into her name. She approached the local Patwari who asked for Rs. 13,000 to record the change in land ownership (mutation). My mother paid this amount but the Patwari did not record the change because he was subsequently approached by a relative who lives in my father's village and currently occupies the land in question and does not want to give it up. He told the Patwari that there were children from my father's first marriage who should be entitled to a share of the land despite the instructions of my father in the Will and Probate.

I do not believe this is correct and based on what I have read in the Indian Succession Act 1925, the Will and Probate should be accepted by the Patwari. I also believe that this relative paid money to the Patwari in return for the Patwari agreeing not to transfer ownership to my mother.

My mother then approached a lawyer who said that the Tehsildar was a close friend of his and could resolve the situation. However the lawyer and Tehsildar have now requested that my mother pay either Rs. 16 Lakh in cash or give one acre of land before the land ownership is changed to her name. If she does not pay this, then they claim that all of my father's six children (including four from the first marriage and two from the second marriage) will receive a share in the property.

My first question on this matter is: what is the correct procedure when transferring ownership of land if there is a Will and Probate granted in a foreign country? Is this something that is within the power of the Patwari and/or Tehsildar? What are the correct fees for transfer of ownership and what applications or forms should be completed?

My second question is: are any of my father's children legally entitled to a share in the land despite the existence of the Will? Do they need to indicate that they are not contesting the Will before the Patwari or Tehsildar transfer ownership of the land, or does the Probate mean that indication from this children is not required?

My third question is that given the unreasonable amounts of money being requested by the Tehsildar, should my mother take this matter to the District Court or any other court? If so, how much time and cost is this likely to take?

Kind regards,



 3 Replies

sanjeev murthy desai (Advocate)     24 January 2009

Dear M. Sing

Fema (Foreign Exchange Management Act (FEMA), 1999) act applying to your mom having the title in respect of the property of Punjab,

Firstly dont pay any thing to anyone. firstly clarify the following things

the said properties are agricultural lands? if the that properties are  agricultural lands your mom should get special permission from reserve bank of india

Your mother has which country citizenship?

sanjeev desai


randeep singh (proprietor)     11 May 2011

Hi. I have a similar question for you. My Late Father's will has been granted a Probate in australia. It was then counter stamped/attested and registered at the Indian consulate in Melbourne. When I came to india the Probated Will was attested by the ministry of external affairs, new delhi and then also stamped at the chandigarh secretariat. The Legal remembrancer's advice helped mutate our chandigarh property into my mother's name. But some lawyers are saying that it needs to be probated again!

 Now can this Probate be enforced in India or is this probate valid in India? Are there any laws or reported cases?

thanks in advance


randeep singh (proprietor)     11 May 2011


The same was tried on us. The law says that once a will has been granted probate then only the court that issues the probate can revoke it or alter it. Which means that your step siblings will have to come to canada to have the probate revoked. As the land is situated in panjab. Pls look up EAst panjab urban rent control act section 13(B) this will help your mum get rid of your tenant quickly. DO NOT GIVE $$ TO ANYONE. where in panjab do you have the land? if in ludhiana or near there then I can suggest our advocate.

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