Me and my Brother were born to Parent A and after living with them for an year were handed over to Parent B for the entire life who is basically the elder brother of Parent A. This happened in 1954 and there is no Godnama for the same. Since we lived with Parent B for all our life, so legally he gave us his name as a Father and Mother (Parent B) and all our documents have their names. Now my Parent B died and wrote a will which is not registered. In that will he says that he did not have any kids and kept one boy child with him from some time and does not mentions anything about me, however all the documents available for both the kids has the name of Parent B. Parent B also says in the will that after my death maalikana haq goes to my brother and sister and the child he kept. But no one have the rights to sell this property as this property is open to all. Now my brother who was handed over to Parent B died and his wife lives separately. Also by some means the father's name in the death certificate has been written as Parent A (this happened with the discussions of people whose name appear in will). Now we want to sell this property and all the names mentioned in will (brother and sister) wants to get it transferred to them without considering me and I need my share. What I can do or can be done to get it transferred to me or how should I go about selling it ? Please note that the will is not registered in any court, it is just notarized. Your advise is highly appreciable.
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File suit for partition for division of property by metes and bounds
2) seek injunction restraining sale of property
3) since you have not been formally adopted by B you have equal share in property standing in name of A
4) you have no rights on property standing in name of B
1. B was neither your biological father nor adoptive father.
2. So, legally 'A' is your father being your biological father.
3. The will also did not specify your names as his adopted children.
4. So, ordinarily, you can not lay your claim on 'B's property after his demise.
5. However, since 'B' has mentioned in his will about the child he has kept with him whom he has willed part of his properties, you can claim to be the said child and claim your share of the said willed property.
6. Before claiming shares of the willed properties, probate of the will shall have to be availed from the Court (if the property is not situated at Delhi where will is not required ton be probated). Without probate, will is not valid as per law.
@Krishna Kishore Ganguly Thank you for your response Sir. Few clarifications that I need: 1. All my documents (10th certificate, Wedding Cards, Election Card, PAN, Passport) has the names of the Parent B. 2. Also as per word of mouth I have heard people saying that there was no adoption necessary in 50's. 3. The will is not registered in court and is just notarized with a black stamp. 4. How can I claim my share being a daughter of Parent B's property because Parent A is not ready to give me any share because he already has 2 Son's and 3 Daughter's and he always rejects to give any share to me. 5. The Property is in Rajasthan and can I go and take the Probate of the will. If yes what is the procedure, also is there a chance of getting the process struck if there is any objection from the claimants as per the will. 6. My marriage was done by Parent B and when the matrimony was done it was communicated to my Spouse's family that my father is Parent B and this is also something that was always hided from me until I passed my college.
It is necessary for valid adoption that there should be giving and taking ceremony
2) in your case no such ceremony was performed nor deed of adoption executed
3) you would not have share in property B as there is no valid adoption
4) in event A dies intestate you would have equal share in his property
5) if any will is executed in your favour you can apply for probate of will
6) in case other legal heirs object to grant of probate it would be converted into testamentary suit and tak years to be disposed of
The property in question bequeathed by a will in favor of the named beneficiaries belonged to one B who is nether your adoptive father nor you were named as one of the beneficiary in the will.
The question is not about the registration of will.
The will need not be registered mandatorily
Even if the B is reported to have died intestate then his surviving class II legal heirs are the successors to succeed his estates.
The surviving legal heirs shall be his siblings who survived his death and not the children of his siblings.
By any chance you dont have any right in the property even for a minor share in it.
Not to discourage you, but the legal position his that you are a third person to the property either by way of will or legally hence any effort or attempt made by in this regard to claim a share may be a futile effort resulting into loss of money, time and energy.
However you may discuss with a local advocate on any other possibility based on any loop holes that may be available when analysing the situation practically.
The documents or educational certificates alone cannot make you the ward of parent B especially when A is alive and he would reveal the fact, so dont undertake the risk.
There has to be a proof of adoption even if the adoption deed was mandatorily registrable at that time.
The will dont have be compulsorily registered.
You are not a legal heir to parent B hence you do not have any right to claim any share in the property legally.
The burden of getting probate of will shall lie on the shoulders of the beneficiaries especially when you challenge it, therefore you need not try to get probate of the will if you are not one among the beneficiaries.
The details of your adoption suppressed from you till the time of your marriage cannot be claimed as a ground to claim title to the properties let behind by the deceased which was transferred by a testamentary disposition.
1. You can claim that religious ceremony for adoption was conducted but adoption deed was not registered at that time due to ignorance of 'B' and this claim of yours can be supported by witnesses and also by submitting copies of your certificates, wedding cards etc as evidence.
2. Will is not required to be registered to for getting treated as valid.
3. You shall have to file an application for seeking grant of probate before the Court and the Court will send notice to all the legal heirs of 'B' for either giving consent to the application for probate or contest it.
4. After hearing all the parties, the Court will either grant probate of the will or reject it.
5. Applying for probate appears to be the best course of action for you.