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?


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


High Court Lucknow

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