Asked July 15, 2016

validity of registered will

  • 1 Answer

Advice needed for a Registered Will, troubles! I am keeping this post anonymous for obvious reasons, I am an ex-pat and returned to India all excited hoping to introduce my kids to a great vast joint family to be only disappointed to see the bitter in-fighting within uncles, aunts and elders over a troubled REGISTERED WILL (Will made in the year 1999 and He died in 2000) I am not narrating the entire story, but the key facts that are to be addressed: Background: 1) My grandfather had several properties and made a registered will with 4 Plots of land to be given to his children. 2) The contents of the will “I retained 5 plots bearing Nos. 29, 30, 46, 47 and 53. Out of these plots, I again sold Plot Nos. 46 and 47. Now I own and possess three plots bearing Nos. 29, 30 and 53.” 3) “After my demise I hereby device, give and bequeath , plot # 30 to my son and plot # 29 and Plot # 53 to my three daughters in three equal shares and in case they pre-decease me the same shall pass on to their children.” Unfortunately, Plot # 29 and Plot # 30 were sold “ there was a clerical error in stating the plot nos.” {The trouble began here for the sisters not knowing how to claim their share of the wrong number printed in the WILL} In the year 2002, This Registered Will was challenged in the lower court by the Eldest Son who did not get any Plot as per the WILL and hence took to crooked means, by bribing the witnesses in the REGISTERED WILL and they did not testify the facts – However, the court has simply declared WILL NOT PROVEN, but did not give a verdict as to what should be done by others with the WILL. After a long gap of 6 years(in the year 2008) all the sisters due to lack of knowledge and manipulated again by the eldest brother hired one lawyer (who was in fact in favour of the eldest son) – made the sisters file for another case disclaiming the WILL and filing for 1/7 share of all the properties. After a long gap of 8 years since the case was not going anywhere the brothers insisted the sisters to withdraw the case since they only need 2 plots and not claim on all the plots so the brothers persuaded them to withdraw the case, believing the brothers, they withdrew the case by not appearing to the court and eventually this partition case of 1/7 filed by the sisters was dismissed. Meanwhile, when the sisters decided to withdraw the case, they were advised that anyway they will be acting as per the WILL, so they can register one PLOT #53 which is very clear that they are the beneficiaries of the plot as per the WILL was registered by all three sisters (technically the case was not dismissed when they registered the PLOT#53). Now the brothers have all ganged up on the sisters to threaten the sisters that they have indeed done something horrible by registering the PLOT #53 and that they can grab all the properties and share equally amongst all the brothers and not give anything to the sisters because the sisters have lost all rights – As you can see, there were too many mistakes done by everyone, mainly due to lack of knowledge of the law and also being misguided by greedy lawyers, the sisters are at a point of TOTAL CONFUSION! BIG QUESTIONS THAT REMAIN: A) The REGISTERED WILL in the year 2000, can it be contested again? Did the statutory limit is over? B) One of the surviving Witness of the WILL gave an affidavit that the contents of the WILL were true and that he had personally gone there for registration (he is 90 years old and not sure how long he will still survive) – will this help? C) Is it true that the Sisters lost all rights to make their claim of rightful share of 2 plots? D) There are documental evidence that plot # 29 and plot #30 were sold before the date of the WILL. E) Is it true that Registration of Plot #53 is illegal (while the case not being dismissed) ? F) Can the brothers as per their claim do the partition without the consent of the sisters? G) The case is in Visakhapatnam, AP, India. IT is very evident if all brothers are willing to co-operate for amicable settlement courts and this query in this forum also not needed, but the fact it has crept up to this level calls for justice

Answer 1

Looking at the facts of your case, there are various facts which needs to be taken into consideration.

The first fact is regarding the clerical error made in the will. Going by what you have mentioned, that the two plots namely plot no 29 and 30 which were already sold before the will was made. Further the registered will was challenged in the lower court and was later on the will was held to be not proven by court. This very fact is enough to prove in the court that there was some clerical error in the will and the same should be harmoniously interpreted.

Further, In India, the law of limitation provided in the Limitation Act, 1963, prescribes a definite time period within which a suit can be instituted by a claimant in respect of various matters prescribed therein.

In the present case, since your father died within one year after executing the Will (in 2000), any suit in respect of the legacy or for a share of a residue bequeathed by a testator or for a distributive share of the property of an intestate against an executor or an administrator or some other person legally charged with the duty of distributing the estate has to be brought within a period of 12 years from the day the legacy or share becomes payable or deliverable, which in this case is the date on which your father died and the fact that there was a claim made, although rejected by court, does not extinguish your right to institute a fresh suit in the District Court and ask for relief from the court.

The entire conflict is here regarding plot 29 and 30 hence in that sense the registration of plot no 53 must not be affected, even though the case is pending before the lower court.

Your brothers cannot disperse the property in question without the permission from you and your sisters as the matter is still sub judice.

The best remedy available to you and your sister is to institute a fresh suit at District Court and present the entire case with the help of your counsel to the court and also institute a criminal case against your brothers by filing an FIR for fraud, criminal breach of trust, cheating, forgery and other relevant sections of IPC as applicable and let police look into the matter. I believe once they come under the fear of prosecution, they will definitely come for settlement. Please do ensure that the criminal charges that you institute must be true and comply with their actual acts as committed. For this purpose, please do consult your lawyer with exact facts. Hopefully this will solve your long ordeal.

Agree Comment 0 Agrees over 5 years ago

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