Legal Advice

Relinquishment of right by unregistered will from brother living in USA

Question: Mr. 1 and Mr. 2 are two brothers, with Mr. 1 residing in India and Mr. 2 in the USA. Mr. 1 purchased property AB in Bombay, India. The agreement for this property was made in 1973, specifying that Mr. 1 and Mr. 2 are identified as purchasers, and they jointly agreed to buy from the vendor. The vendor was responsible for constructing a building on the plot, and the brothers would acquire an AB flat within that building. Although Mr. 2's name was used in the agreement, it was Mr. 1 who actually made the purchase. Mr. 2 resided in the USA, while Mr. 1 was in India. Consequently, the property in the USA belonged to Mr. 2, and the property in India belonged to Mr. 1. In 1978, Mr. 1 obtained the share certificate of the society solely in his name, with Mr. 2's name never being added to it. Mr. 1 is my father, and Mr. 2 is his biological brother. In 1988, Mr. 2 and his wife created a will stating that they were relinquishing their rights to property AB. Although the will was signed by two witnesses, Mr. 2 had a daughter named AAA and a son named BBB, both of whom were minors at the time of the will's creation. This will was neither registered nor notarized; it was solely signed. Mr. 2 passed away in 1989, and his wife in 2022. AAA and BBB are now adults. Mr. 1 also passed away in 2016. He transferred all the property to his wife, who subsequently transferred property AB to me through a registered gift deed. Now, my questions are: Since the share certificate, maintenance bills, and electric bills have been in Mr. 1's name since 1978, and everything has been transferred to my name, including the share certificate, can I be considered the sole owner, or do AAA and BBB have any legal claims? We do not have a good relationship with them, and they are unaware of this issue. Is there any potential legal trouble I might face due to them? Is there a chance that a buyer might be dissatisfied with my name on the share certificate?

Advise

It is not mandatory that a testamentary will must be registered. An unregistered will is also valid, and if a right has been relinquished by a person through that unregistered will, it is enforceable in India. You have to obtain probate from the District Court.

In your case, your father’s elder brother has passed away in the USA, and his children are also not willing to come to India. Hence, no objection will be filed by them regarding the probate. You should file for probate and let the court issue notices to the legal heirs of your deceased uncle. However, they have no objection to the relinquishment of the property, but you have to inform them about the probate process.

Probate is a legal process that involves proving the validity of a deceased person’s will and administering their estate (assets and property) in accordance with the terms of the will or the applicable laws if there is no will. The purpose of probate is to ensure the orderly distribution of the deceased person’s assets, payment of debts, and the transfer of property to the rightful heirs or beneficiaries.

The first step in probate is to file the deceased person’s will, if one exists, with the appropriate court in the jurisdiction where the deceased lived at the time of their death or where the property is situated. The court appoints an executor (if named in the will) or an administrator (if no executor is named or willing to serve) to manage the estate. The executor or administrator is responsible for carrying out the terms of the will, paying debts, and distributing assets.

After filing for probate, notice is typically given to creditors, allowing them to make claims against the estate for any outstanding debts. The court also notifies the heirs and beneficiaries of the probate proceedings.

Your father had purchased that property; hence, you became the sole owner of that property after your father’s death. There are no legal impediments regarding the title and ownership. Your deceased uncle had already relinquished his right. Hence, there is no other owner except you in respect of this property. The proposed buyer shall have an absolute right when you sell this land to them.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Latest Advice

Stepmother can get share in ancestral property after death of father

My stepmother is asserting her share in the ancestral property, currently registered under my late grandfather’s name, who passed away four years ago. The property is yet to be distributed, and my stepmother vacated our ancestral home three years ago, residing elsewhere with her daughter. The daughter, who lived with us before marrying 25 years ago and subsequently leaving our house, is now asserting her rights over the property. I seek advice on the validity of my stepmother and her daughter’s claim to my father’s property following his demise.

I lied to my boyfriend about my divorce now he refuses to marry

In 2017, I separated from an abusive marriage. After some time, I started dating someone. In 2021, I got divorced, but I didn’t disclose this to him because I was concerned that he might judge me. Now he is refusing to marry. We have been in a sexual relationship for three years. He is 23 years old and my age is 38. I love him because his sexual orientation meets my desire. How to initiate a legal process to compel him for marriage?

Can a single accused seek quashing of FIR

An FIR has been filed against four accused individuals, and Accused No. 4 possesses a distinct identity. Question: Is it possible for the High Court to quash the FIR only against Accused No. 4? An FIR has been registered, and a C-Summary has been submitted to the Honourable Magistrate. The complainant has filed a Protest Petition, leading the Honourable Magistrate to return the C-Summary to a new Investigating Officer for further inquiry. Question: At this stage, can the alleged Accused No. 4 seek relief by approaching the High Court to have his name quashed from the FIR?

School authorities are creating a private nuisance

I have been living in a residential area for more than 17 years. There is a school behind our house, and it does not have any wall connecting to our house. Recently, they have constructed a horse shed without any wall, using iron pillars. Now, I am unable to sleep in my bedrooms due to the horses kicking on my wall and the noises they create. Additionally, I am unable to use my rooftop because of the foul smell generated by their excreta. The condition of my wall is deteriorating due to this shed. I had previously approached the SDM office, but the opposing party allegedly bribed the official. What legal remedy should I pursue against the school authorities?

My wife and her family don’t allow me to meet my daughters

My wife and her family does not allow to meet my daughters since 1 year. My elder daughter is of 3 years and younger is of 10 months but they not allow me to meet them. many times me and my family members try to take her back to house but she demand to do property on her name .since 1 year she is with her parents she did not even tell me how is my daughter’s and did not allow to talk to them on call.

Husband denied to access my matrimonial home

I resided with my husband for a duration of five months in an apartment. The house is registered in the name of my father-in-law, yet my in-laws reside in a different state. I am the individual who invested all of my finances in the interior and household accessories for the house. This decision was made under the understanding that it is my residence, and consequently, I am accountable for its furnishings. I willingly accepted and utilized my entire salary for this purpose.

However, my husband is engaged in an extramarital affair and desires to marry his girlfriend. He is pressuring me to initiate a divorce and is also subjecting me to physical harassment. In response, I have filed for a Domestic Violence Complaint (DVC) seeking a residential order. Unfortunately, I am being denied access to my home, with the explanation that it belongs to my father-in-law. I am in need of assistance; please help me.

CO of the same regiment headed SCM: Can I challenge the proceedings of SCM?

I was detailed on duty on 2045 hours thereafter, an officer came and found me sleeping. He then slapped me and called me to appear in office on the next day. On the very next day that officer abused me then I slapped him in front of some other soldiers. This incident was recorded and SCM was recommended after the court of inquiry. The CO of the same regiment headed the SCM. He was biased and conducted one sided trial. Thereafter I am discharged from the service. My total length of service is thirteen years nine months sixteen days. Is there any change of reinstatement?

Terminated from service on the ground of bigamy

Enlisted in the Indian Army in 2001, I married in 2006. While on duty in Arunachal Pradesh, my wife engaged in an extramarital relationship with a civilian, prompting me to send a legal notice for divorce. We divorced in 2013 after she initially filed a divorce and maintenance case in 2010, which we later resolved through mutual consent. In the same year, she also accused me of bigamy, leading to termination from the Army. Seeking guidance on the appropriate course of action in this matter.

Alleged Forgery and Misrepresentation: Discrepancies in BPCL Petrol Pump’s Diesel Storage Reported to PESO

Petroleum & Explosives Safety Organisation (PESO) issues license to Bharat Petroleum Corporation’s petrol pumps for storage of Petrol/Diesel. A petrol pump of BPCL illegally filled diesel in a tanker beyond the permissible limits for which a complaint was lodged by me with PESO. PESO asked for an explanation. In its reply, the BPCL officer under reported the quantity of diesel filled in the tanker and in support of his claim, submitted a forged sales data which was prepared after deleting sales entries from the computerised records. The fact that the sales data was forged was brought to the notice of PESO by me after PESO shared BPCL’s reply with me. PESO again questioned BPCL to which they confirmed that their dealer had deleted entries from the data. Subsequently, PESO has written to the police to take action under the Petroleum Act according to which the offence is bailable whereas I am asking PESO to file an FIR since forgery of data, preparation of a false document and its use as a genuine one is a serious offence under the IPC. The PESO officer refuses to do so. Is he right in not filing an FIR ? Am I unjustified in demanding an FIR in the matter ?