Can property be sold if will does not allow it ? Please advise.

841 votes

NO, a person cannot sell the property if he is not the owner of the will. you can file for a case and seek stay order from the court.

What do you mean by Stay Order in Indian Law?

The act of temporarily stopping a judicial proceeding through the order of a court.

A stay is a suspension of a case or a suspension of a particular proceeding within a case. A judge may grant a stay on the motion of a party to the case or issue a stay sua sponte, without the request of a party. Courts will grant a stay in a case when it is necessary to secure the rights of a party.



How can you get Stay order on a Property?

Stay Order means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out of existence. Stay of execution means to suspend the enforcement of a judgment or order until something else happens e.g. an appeal can be heard. Proceedings can also be stayed absolutely or conditionally. Every court has inherent powers to temporarily suspend the proceedings in any action where the Plaintiff is in default or has disobeyed any lawful order of the court.

Status Quo means the state of things at the time of issuance order remain the same till the order stands vacated or decided by a judgment.

Both these important aspects civil law are governed by following provisions:

Order XXXIX of CPC:

1. Cases in which temporary injunction may be granted

1Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 2[defrauding] his creditors,

3[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]

The Court may order and grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property3[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.



Stay order on construction:

The Court may order and grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property3[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

Advocate Siddhant Sharma LawRato

945 votes

no you must apply for probate of the will. the will will create rights on its beneficiaries and then they will take it up from there. without a probate the will itself does not mean anything.

no you can't sell the property which is subject matter of a will as an executor of such will. you are the executor only and not a beneficiary.

Advocate Saptarshi Banerjee LawRato

811 votes

Until and unless the Will has not been probated, it has no effect. Before dealing with your question It is necessary to know that if the Will has been probated or not. Generally the intention of the Will should be maintained, but some of the special circumstances you can initiate sell of the property.
A detailed discussion is needed before drawing any conclusion.

LawRato LawRato