Legal Question in Wills and Trusts in India

SUB:Transfer of Residential Flat to Regd. Nominee and Getting Probate/Letter of Administration

1. A Residential Flat in MUMBAI was sold by some other Party (not by Builder/ Society) and purchased by Father out of his own earnings/savings in 1978 vide Deed of Assignment and Transfer, Jointly in the name of (1).Father and (2).Mother (Housewife). Proof of payment made not available. Share of Property to each not spelt in the Deed. 2. After the death of Mother in 2001 , fresh Nomination was made by Father and Registered in the Society in 2007 (without obtaining any NOC from Daughter and Son) clearly mentioning to Transfer the Shares and interest in the Flat to the first named Nominee-Daughter,Share of each Nominee is clearly stated as (1).Daughter. 50%.( 2). Son. 50%. Nomination is duly witnessed by 2 persons .3. Subsequently in 2007 Father has made a WILL and the same is Scanned and Registered in Mumbai in 2007. This Will was duly witnessed by 2 persons. One more person was appointed as the Sole Executer of the Will. In the Will it is clearly mentioned that Daughter and Son shall be the owner of 50Ích Share in Flat .After some time the Father has kept the Will in the custody of Daughter. 4. Son, along with his Family (Father, wife & 13 yrs.old son) has shifted to the new, more spacious & well furnished Flat in the nearby area in 2010.Immediately after shifting he renovated & converted the whole old Residential Flat into full fledged Coaching Class and earning handsome amount there. 5. Father has died in 2012 at Sonís New Residence in the same area. After knowing about the Will from the Daughter, Son ( with his wife & son ) has shifted back to the old Flat (which is not suitable to reside as Residence). 6. In spite of sincere efforts, since the Son is not cooperating and not ready to give Joint Transfer Application, a formal letter was given by the Daughter to the Society enclosing therein( 1). Copy of Regd. Nomination,( 2). Copy of Regd. Will,( 3). Copy of Death Certificate, thereby requesting to do the needful at the earliest. Son has immediately written to the Society raising objections for transferring 50% Share to Daughter but instead claiming 100% S hare and instructed the Society not to Transfer till the Probate is got, which he is intentionally stalling by influencing the appointed Executor and Witnesses. After some time Executor named has refused to act and one of the Witness seems to have been influenced. Son in his letters to the Daughter and Society falsely alleged that the Genuine Regd.Will is Bogus one and also that the Father is not the Sole Owner of the Flat and hence no right to Nominate and make a Will. 7. Original Reg.Nomination and Will is presently with Daughter but Original Agreement of Flat, Share Certificate, SB Pass Book etc . are with the son. When Daughter has written to Son to give copies of all the Documents (for filing PROBATE) and cooperate for filling up the Bank Forms to setttle the amount lying idle in SB A/C and FD .There is no Nomination made in SB A/C and FD A/C . Son intentionally denies for having any records with him and not ready to cooperate and sign Bank Forms etc. but advices Daughter to go to Court for her 50% Share. Certain amount is lying idle in SB A/C and FD A/C ( already due) for about 1 Ĺ yrs. 8. While Regd.Letters sent to New Residence being returned without Acknowledgement(just to prove that he is not staying there) ,the letters sent to Old Flat is received by Neighbour and given to him.. Sincere efforts of Elders for amicable settlement failed and Son is not at all ready for further talks mainly with bad intention of delaying the process thereby earning lakhs of Rupees by way of Tuition. 9. Presently Daughter is not in a position to apply for Probate / File Partition Suit due to her poor financial condition.10. Kindly advice in detail about all the Legal implications for early settlement of case. Thanking you in advance.

Asked on 6/16/13, 8:25 am

1 Answer from Attorneys

Fca Prashant Chavan Expert Edge LLP


Dear Sir / Madam,

Always be brief and specific in your query. Since the father has Willed 50% of his property to his son and the other 50% to his daughter, a Probate will have to be obtained from the Court to sell the property and divide the proceeds equally between the son and daughter named in the father's Will as beneficiaries.


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Answered on 6/17/13, 6:25 am

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