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Author Topic: validity of father bequeathing property of one son to another  (Read 389 times)

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Offline sreesupandi

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Hi,

A family of four has father mother, two sons. All four and two external witnesses signed on all pages of father's will which bequeathed
 a) father titled land to both sons; 60% to elder son and 40% to younger son citing use of elder son's dowry for family purpose.
 b) mother tiled house to both sons
 c) elder son titled plot to younger son; citing use of younger son's dowry for family purpose

Father and Mother expired subsequently.

1 Is Father's bequeathal of house and plot valid even though they were not registered on his name?
2 otherwise, did all four signing on all sheets make bequeathal of house and plot valid.
3 can elder son invalidate bequeathal of plot by selling/transferring it now 20 years since testate's demise?
4 when does the plot get transferred to younger son?
5 does the younger son need elder son's approval/registration to gain rights to plot?
6 Does it matter if the will got registered or not?
7 Does it matter if the properties got mutated or not?
8 Can elder son  adeem the plot from the will as per Indian succession Act section 152?
9 Can elder son elect the plot out of the will as per Indian succession Act section 180?
10 Are there any other laws/acts that influence (b) and (c).






Indian Succession Act apply to above bequeathals in the will, 1925 (http://districtcourtsnamchi.nic.in/laws/indian_succession_act_1925.pdf):
A) CHAPTER XVI Ademption of Legacies
152. Ademption explained.-If anything which has been specifically
bequeathed does not belong to the testator at the time of his death,
or has been converted into property of a different kind, the legacy is
adeemed; that is, it cannot take effect, by reason of the subjectmatter
having been withdrawn from the operation of the will.
B) CHAPTER XXII Election
180. Circumstances in which election takes place.-Where a person,
by his will, professes to dispose of some thing which he has no right
to dispose of, the person to whom the thing belongs shall elect either
to confirm such disposition or to dissent from it, and, in the latter
case, he shall give up any benefits which may have been provided for
him by the will.


Thanks
« Last Edit: May 20, 2016, 01:47:11 AM by sreesupandi »

Offline sreesupandi

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Re: validity of father bequeathing property of one son to another
« Reply #1 on: May 20, 2016, 08:47:13 AM »
apologies for pushing up but need the information urgently. Thanks.

Offline sreesupandi

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Re: validity of father bequeathing property of one son to another
« Reply #2 on: May 22, 2016, 11:41:11 AM »
any answers? thanks

Offline adv.amarnath

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Re: validity of father bequeathing property of one son to another
« Reply #3 on: May 23, 2016, 07:36:02 PM »
1 Is Father's bequeathal of house and plot valid even though they were not registered on his name?
Ans: No

2 otherwise, did all four signing on all sheets make bequeathal of house and plot valid.
Ans: no

3 can elder son invalidate bequeathal of plot by selling/transferring it now 20 years since testate's demise?
Ans: No as no probate has been taken.

4 when does the plot get transferred to younger son?
Ans: When probate will be granted by the court.

5 does the younger son need elder son's approval/registration to gain rights to plot?
Ans: This question does not lies until probate is taken

6 Does it matter if the will got registered or not?
Ans: No

7 Does it matter if the properties got mutated or not?
Ans: No

8 Can elder son  adeem the plot from the will as per Indian succession Act section 152?
9 Can elder son elect the plot out of the will as per Indian succession Act section 180?
10 Are there any other laws/acts that influence (b) and (c).
Ans for (8), (9) and (10): Please dont get into law, you will be more confused. If you are from legal background then you should have not asked this questions.


Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

Offline sreesupandi

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Re: validity of father bequeathing property of one son to another
« Reply #4 on: May 24, 2016, 08:45:58 AM »
Thank you Mr Amarnath for answering my questions.

In answers to 1 & 2 you conveyed that father bequeathing property not on his name is not valid, but in answers to 3, 4 & 5 you conveyed that title holder's transfer rights on such bequeathed property are in abeyance until probate occurs.

Are you suggesting, based on your answers from 1 to 5, that probate/court must first decree the bequeathal of plot and house as invalid and only then the title holder is free to exercise his entitlement? Can you kindly clarify why the invalid act hold's the entitled right in abeyance? Doesn't that leave room hypothetically for testate to play mischief posthumously by bequeathing in his/her will an adversary's property?

I am not a lawyer and do not want to pretend either but before posting the question here I met a few local well recognised lawyers in this regard.  I found them giving contradictory answers. So, to better understand, I started reading the acts and accessible SC/HC cases. Having read them to some extent, though confusing many a time as you said, I find the acts and codes fascinating, very well written in easy language, covering vast possibilities and empowering. But I agree, end of the day I need a professional guidance.

If you can indulge my curiosity, Indian succession Act section 180 is directly talking about cases where testate bequeaths property not on his name. Can you kindly give your opinion its application to my case?

Regards

 

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