My father died intestate in 2015. He purchased a land in my mother’s name. After his death, my mother, sister and I made a first class notary agreement that we will have equal rights over the property. I did not know about the coparceners. I have a five-year-old son and a nine-year-old daughter. Can I file a suit claiming that my children have a share in the unpartitioned property?
We have assumed that you are a Hindu and the Hindu Succession Act, 1956, shall be applicable to you and your family. We understand that the property was purchased in the name of your mother and, accordingly, the land records reflect that your mother is the absolute legal owner. Therefore, the subject property being in your mother’s name was not pooled in any manner whatsoever and, hence, it will not be construed to be a Hindu Undivided Family (HUF) property. Subsequent to the demise of your father, an agreement was executed between you, your mother and sister wherein the property was equally divided between the three of you and was notarised before the first class notary. Further, an agreement for dividing the property into three equal parts is mandatorily required to be registered under the provisions of the Indian Registration Act, 1908.
On the basis of the information provided, we have concluded that the property is not an HUF property. Therefore, your proposed claim to file a suit claiming that your children have a share over the unpartitioned property being a HUF may not hold good.
My father made a registered Will but nine years later, he created a document for cancellation of Will with a proper reference to the previous Will. As the cancellation was not through a registered document, some lawyers are saying that the earlier Will won’t be treated as cancelled. Is that so? Also, is a probate compulsory?
Under the Indian Registration Act, 1908, the registration of a Will, which otherwise satisfies all the requirements of a Will, is optional and not compulsorily registrable. Hence, a new Will can be prepared by the testator by revoking his earlier Will as many times as the testator desires. The last such Will shall be construed to be his final Will. Also, a specific bequest can be altered by carrying out an amendment to the old Will, colloquially known as codicil. Such new Will or codicil is not required to be compulsorily registered.
Even an unregistered codicil or a new Will itself will have to be read as complementing the old Will. This codicil or a new Will cancelling the old Will is a proper document in the eyes of the law. This is, however, subject to the condition that such codicil or a new Will (cancelling the old Will) is executed following the same rules of execution as applicable to a Will. Also, even if a Will is registered and the cancellation of old registered Will in question is by an unregistered Will or codicil, such unregistered document shall hold good.
A grant of probate by the concerned court for the Will is considered to be proof for the genuineness of a Will. The law stipulates that probate is required for Wills made by Hindus, Buddhists, Sikhs or Jains, as far as they relate to the immovable property situated within the local limits of the jurisdiction of Madras, Bombay and Calcutta.
Aradhana Bhansali is partner, Rajani Associates. Queries and views at firstname.lastname@example.org