Wants to transfer my maternal grandfather's property to my mother
11-Jun-2023 (In Property Law)
My nanaji (Now no more) has left a unregistered will stating that this one particular shop belongs to my mother bearing two witnesses (Nani & One Cousin Mama) now we want to make that property registered in my mother's name d my mother have two brothers who will not provide us the NOC but the witnesses will be speaking in favour of us. Can you please provide your assistance on the below two points:- 1) Is it mandatory to get the will probated? We Belong to Jainism Family. 2) IF no then how can we proceed for the registration process that is what are the documents required or amount involved? 3) If yes then what can we do in that case?
Hello client hru.as per ur msg u are saying ur Nana Ji have given a property to ur mother in his will he have given a property to ur mother as ur having an intuition. That ur mama Ji will not give Noc so .in this regards u have discuss over all matter with documents.
Getting an unregistered will registered post the testator's death is not possible. However with other documents in place along with the Will there are quite a few legal options available for you. For further details you may contact me.
Look as it's clear from you submission that two brothers of your mother are not ready to give noc hence you have to obtain letter of Administration (Probate) from competent Court of Law empower to hear your matter.
In the case all legal hear would be appearing and put forward their view in support or in opposition to the will but once the witness in the will depose in favor of will The Court after hearing will grant you mother letter of administration and would direct the land and revenue collector to enter your mother as absolute owner.Hope I answered your question.
In the case all legal hear would be appearing and put forward their view in support or in opposition to the will but once the witness in the will depose in favor of will The Court after hearing will grant you mother letter of administration and would direct the land and revenue collector to enter your mother as absolute owner.Hope I answered your question.
Probate is defined in Indian Succession Act, as “a copy of Will certified under the seal of a court of competent Jurisdiction with grant of administration to the estate of testator”. This is the official proof of the Will. Application for probate have to filed under section 222, and 276 of Indian Succession Act to probate division of High Court. The Petition for grant of probate shall also be verified by at least one of the witnesses to the will if procurable. However, this condition is recommendatory and not mandatory.
Probate will be issued only to the executor appointed in the Will. If there is no provision for appointment of executor in the Will, the court will grant only letter of administration. The Will is considered to be a genuine one after the probate is granted by probate division of High Court. It binds not only the persons, who are the parties, but also others, who are not parties to the probate proceedings.
There is much confusion as whether all Wills executed by Hindus, Muslims, Christians, Buddhists, Sikhs, Jains, require probate. Section 57 and read with section 213 of Indian Succession Act clears this confusion. Both the sections are reproduced alongside.
Thus the obtention of probate, and letters of administration are mandatory to establish the right as executor or legatee. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion.
Section 57:
Application of certain provisions of part to a class of Wills made by Hindus, etc. – the provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein apply:
(A) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870. Within the territories which at the said date were subject to the Lieutenant-Governor of Bengal
Or
Within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay;
AND
(B) To all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits;
AND
(C) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such Will or codicil. Section 213 Right as executor or legatee when established:-
1. No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
2. This section shall not apply in the case of Wills made by Mohammedans (or Indian Christians), and shall apply:
(i) In the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57;
(ii) And in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Will are made outside those limits, insofar as they relate to immovable property situate within those limits.
Probate Not Required Wills made by:
1. Mohammedans.
2. Indian Christians.
3. Hindus, Buddhists, Sikhs, Jains.
A. Outside the territories of Lieutenant Governor of Bengal as on 01/09/1870.
B. Outside the local limits of ordinary original civil jurisdiction of High Court of Madras, Bombay.
C. Wills in respect of immovable properties outside the above limits.
Probate will be issued only to the executor appointed in the Will. If there is no provision for appointment of executor in the Will, the court will grant only letter of administration. The Will is considered to be a genuine one after the probate is granted by probate division of High Court. It binds not only the persons, who are the parties, but also others, who are not parties to the probate proceedings.
There is much confusion as whether all Wills executed by Hindus, Muslims, Christians, Buddhists, Sikhs, Jains, require probate. Section 57 and read with section 213 of Indian Succession Act clears this confusion. Both the sections are reproduced alongside.
Thus the obtention of probate, and letters of administration are mandatory to establish the right as executor or legatee. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion.
Section 57:
Application of certain provisions of part to a class of Wills made by Hindus, etc. – the provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein apply:
(A) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870. Within the territories which at the said date were subject to the Lieutenant-Governor of Bengal
Or
Within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay;
AND
(B) To all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits;
AND
(C) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such Will or codicil. Section 213 Right as executor or legatee when established:-
1. No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
2. This section shall not apply in the case of Wills made by Mohammedans (or Indian Christians), and shall apply:
(i) In the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57;
(ii) And in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Will are made outside those limits, insofar as they relate to immovable property situate within those limits.
Probate Not Required Wills made by:
1. Mohammedans.
2. Indian Christians.
3. Hindus, Buddhists, Sikhs, Jains.
A. Outside the territories of Lieutenant Governor of Bengal as on 01/09/1870.
B. Outside the local limits of ordinary original civil jurisdiction of High Court of Madras, Bombay.
C. Wills in respect of immovable properties outside the above limits.
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