• How to execute a will

A Hindu head of family passed away and has left behind a will signed by two witness and the document is notarized.

He has a wife, two sons and two daughters as the legal heirs. There are two properties that he has given to the family in his will:

An old house, jointly owned by him, his wife, and his brother. A partition suite was filed by him and his wife against the bother. Lower court had given verdict for separate possession of part of the house. His brother has filed first appeal in high court against verdict which is pending. His share in this property he has given to wife and elder son in the will.

A new house, owned by him and purchased using govt loan during his government service. He was charged with disproportionate asset case and was convicted by lower court along with a fine and recovery of Rs 10 lakh. An appeal in high court was filed by him which is pending. This property was recorded by ACB while calculating assets. This property he has given to younger son in his will.

Please provide answer to following question and suggest appropriate course of action to execute the will:

1)	Is the notarized will good as it is, or does it need to be registered, or probated?
2)	Which of legal heirs should apply for substitution in the civil case of old house
3)	Which of legal heirs should apply for substitution in the criminal case
4)	In case of abatement of criminal case, does the fine of 10 lakh stand and who pays the fine
5)	If the family loses criminal case in high court, what fines are imposed. Does court charge interest on the pending fine amount
6)	What is the process to transfer the property in the name of sons
7)	If the new house is attached by court, can it be transferred to younger son name during pendency of criminal appeal, and what would be the procedure
Asked 3 years ago in Property Law
Religion: Hindu

11 answers received from multiple lawyers

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11 Answers

1. It is not mandatory to register the Will.

Even unregistered Will is also recognised as legally valid instrument.

2. The legal heirs of the deceased are entitled to succeed to the property left behind by the deceased owner provided there's no Will written in respect of the property in question.

3. All, but one of them can represent others by obtaining a power of attorney from others.

4. The criminal case has been disposed but pending in appeal preferred by the accused hence there's no question of abatement.

5. If the appeal is dismissed then the original sentence will prevail.

However no interest would be collected against the fine amount.

6. If the property is free from encumbrance then the beneficiaries can apply for transfer of revenue records and all other records pertaining to the property in question from the name of the testator to the names of beneficiaries.

7. If it is attached by a court order then it cannot be claimed by anyone till the court revokes or sets aside the orders.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. It's good but if there is any dispute between legal heirs it's better to probate. 

The legal heirs who are concerned with the said testator needs to take steps. 

The court will rule in its order the party who will pay fine. 

It can be transferred through partition deed, gift deed etc as per the choice

If there is any injunction order against transfer you can't transfer when matter is pending in court. 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Notarised will should suffice 

 

2) registration is optional 

 

3) wife and elder son as per will should apply to be substituted in place of deceased in civil suit 

 

4) all legal heirs should apply for substitution in criminal case 

 

5) estate is responsible for payment of fine .legal heirs who inherit his assets have to pay fine 

 

6) apply for mutation of property in name of legal heirs as per deceased father will 

 

7) if other legal heirs contest mutation then you have to apply for probate of will 

 

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

Old House:

This house is in combined names of father , mother  and uncle. There are three owners each having 1/3 share. Father bequeathed his 1/3 share to wife and elder son. Suit for partition  filed by father  is decreed directing separate possession for all three owners. Against this decree appeal by uncle is pending in High Court. 1/3 of his share in the  old house will devolve on wife and elder son as per will, mother  will take her 1/3 as owner of property.

New House:

If the  new house is claimed by ACB as part of proceeds of corruption, part of will regarding this property will be invalid as it will be seized by government as case property.

Criminal Appeal:

On death of accused, criminal proceedings get abated, that such proceedings at trial or appeal are closed for ever. Lega heirs cannot continue appeal against conviction in criminal offence.

Amount of fine:

It will be recovered from the  property that has come to the  share of accused or earned him through legal means.

  1. A notarized will is valid as registered will. It needs to be probated in MP only it is challenged.
  2. All legal heirs are necessary parties in appeal in High Court against partition
  3. No one can seek substitution in criminal proceedings after death of accused.
  4. Fine will be recovered from sale of properties belonging to accused.
  5. Criminal appeal is not in existence now.
  6. Court will make an order in decree for mutation of property in the name of sons.
  7. There is no criminal appeal pending, judgment of lower Court became final. Attached property belongs to Government. It cannot be transferred to anyone.

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

1. As per law, the registration of a WILL is not mandatory , and it can be written simply on a plain papers in the presence of two witnesses. 

- Further, if there is dispute in the Will , then it should be probated from the Court. 

2. Since, there is a Will , then the beneficiary should apply for substitution in the civil case of old house. 

3.  None ,

4. Depend upon the discretion of the court

5. No abetment 

6. You can apply for mutation of the property in the name of beneficiary. 

7. During the pendency of appeal , it cannot be transferred to younger sons name. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Dear Client,

A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will. Though the registration of a Will is not compulsory , it can be registered with the sub-registrar .

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

Defendant legal heirs have to be brought on record 

 

you can seek expedited hearing if you senior citizen 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

The legal heirs of the defendant have to be impleaded as necessary party to the suit.

This has to be done by the plaintiff side by filing various applications namely under the provisions of 1) Order 22 Rule 4 of CPC for impleadment of LRs of the deceased defendant; 2) Order 22n Rule 9 to set aside abatement if the period of limitation is 60 days from the date of abatement; 3) Under section 5 of limitation act to condone delay in filing the abatement petition if the abatement period is beyond .60 days; 

The plaintiff, after the abatement is set aside has to file an amendment petition too to amend the plaint by including the names of the legal representatives of the deceased defendant.

Certainly all these processes  will take a period of at least six months to one year and the case cannot proceed without following the siad procedures. 

Therefore you may not be able to get any order for an expeditious trial of the case without completing the necessary formalities before that. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

It can't be expedited it on this ground 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

- As per law, after the demise of either of the party in the case, his legal heirs can be substituted as party to contest the case filed by the deceased

- Further, after the demise of defendant , the court cannot pass its order without substituting the legal heirs as party in the case. 

- However, if this case is taking much time , then you can approach the High Court for getting direction to complete the case within a fixed time frame. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

If one of the defender dies then the legal hair of the different and can continue with the case

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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