Probate is compulsory in gujarat
Sarfaraz Chhipa
(Querist) 29 September 2016
This query is : Resolved
Property of flat in association in the name of jatin talati & manjula talati.
Thereafter, manjula talati died and during her life time she made a motarized will in presense of two witness and per the said will share of mnjulaben came to her daughter in law and her grand son.
And said owners agreed to sell said property to buyers but sro office demanded of probate meaning less
Plz send ur advise to fight with sro
P. Venu
(Expert) 29 September 2016
Any suggestion depends upon the location of the property as well the place of execution of the Will.
Raj Kumar Makkad
(Expert) 29 September 2016
probate of will is not required to be probated in any city of Guajarat so make a representation to collector against the order of Talathi to register the sale-deed.
Kumar Doab
(Expert) 29 September 2016
The author may respond to pertinent points raised by expert Mr. Venu.
I have understood fro some queries that the usual process is sometime uttered as 'probate' i.e. NOC from other legal heirs/advertisement in newspaper....
Reconfirm.
Generically speaking: The authority under whose jurisdiction property falls may ask to submit requisite form for intestate Succession, death certificate, NOC/affidavit from other legal heirs, legal heir affidavit/certificate, confirmation from local MC Councillor, advt in newspaper etc...........
Raj Kumar Makkad
(Expert) 29 September 2016
A probate is required only under following circumstances :
(i) All wills of Hindus etc made on and after 1 September 1870, within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.
(ii) All such wills made outside the territories mentioned in (i) above relating to immovable properties situate within the said territories must also be proved and probate thereof obtained, before any right as executor or legatee can be established.
(iii) Wills other than those in categories (i) and (ii) above made before 1 January 1927, i. e to say, such wills made outside the territories mentioned in (i) above, relating to movable property situate inside or outside the said territories or immovable property situate outside the said territories are not required to be proved or probated [see s 213 (2), infra].
(vi) Where a will is not executed within the territories mentioned in para (i) or the will does not relate to property situate within the territories mentioned in para (ii), sub-s (1) of s 213 is not attracted.
In your case, since the will is executed in Gujarat and immoveable property is involved such a will does not attract provisions of section 213 of Indian Succession Act, 1925. Therefore such a will is not required to be probated.
Since no probate is necessary of the will in the instant case, the will is admissible in evidence even though it is not probated in accordance with Section 213 of Indian Succession Act, 1925.
Kumar Doab
(Expert) 29 September 2016
At times the authorities ( any authority) draft private rules/policies and settle some thresholds, and demand to probate the WILL, beyond thresholds set by it.
Even in such cases the persons with resolve and proper guidance, succeed.
Therefore do not succumb and give up.
Attempt to succeed.
Although the estate in question is not immovable property, in another thread, but the querist succeeded, without probate of the WILL:
http://www.lawyersclubindia.com/experts/Transmission-of-shares-without-probate-of-will--601546.asp
M V Gupta
(Expert) 30 September 2016
Sub Registrar has no powers or jurisdiction to inquire into the validity of the will or demand probate of the will, when there is no written complaint made to him by any person interested in the flat questioning the validity of the will. Further probate of will executed at places other than the Presidency towns of Mumbai, Kolkata and Chennai are not compulsory.(Refer Indian Succession Act)
Raj Kumar Makkad
(Expert) 30 September 2016
I strongly endorse the clarification of law given by expert M V Gupta ji. The registrar is crossing his jurisdiction in the given case.
Kumar Doab
(Expert) 30 September 2016
Fully agreed with Expert Mr. M.V.Gupta.
Kindly spare more time to post at LCI.
When more and more number of Experts post their valuable advise, in different threads, everyone benefits from enriching discussions.
Kumar Doab
(Expert) 30 September 2016
The question arises:
Why the WILL is taken straight to SRO?
The WILL should have been submitted to act upon the WILL to authority under whose jurisdiction property falls e.g; MC, Co-OP Society, etc.
Generically speaking: The authority under whose jurisdiction property falls may ask to submit requisite form, death certificate, NOC/affidavit from other legal heirs, legal heir affidavit/certificate, confirmation from local MC Councillor, advt in newspaper etc...........and if there is NO contest the authority could have updated the beneficiary as owner in its records.
The SRO shall look into SOP that are handed over to it by its respective departmental authority.
Raj Kumar Makkad
(Expert) 30 September 2016
Tehsildar is the competent authority to change the ownership in the revenue record even on the basis of will. He shall give public notice prior to effecting such change and if no objection is received within the stipulated time, he shall proceed further.
Rajendra K Goyal
(Expert) 01 October 2016
Get the mutation entered in the name of legal heirs on the basis of will. Later on proceed to sell.
Use RTI to get information from SRO for refusal if again done.
Raj Kumar Makkad
(Expert) 01 October 2016
Entry of mutation is the essential condition which is though entered by village headman but is sanctioned by Tehsildar only being Assistant Collector 2nd Grade even in Gujarat.
M V Gupta
(Expert) 02 October 2016
In my view mutation of the revenue records is not a must for registering the sale deed executed by the Owners. This can be done even after the sale of the property to the buyer. After all the revenue record is not title deed by itself and is maintained by the Department of revenue for collection of taxes. in a given case it corroborates possession of the property by the parties mentioned in the record. The sub registrar while registering a document is concerned with payment of proper stamp duty, identity of parties signing the document, and in cases where a POA holder signs the document, his authority to sign the document etc.
Dr J C Vashista
(Expert) 02 October 2016
In the instant case the beneficiary need not seek any probate of the Will executed by the testator, as elaborate and explained by the experts Mr. Kumar Doab, Mr. Raj Kumar Makkad and Mr M V Gupta, I fully agree and appreciate.
Since the flat do not fall under the preview of revenue records, municipal authorities are competent to endorse mutation.
SRO has no jurisdiction/authority.
Rajendra K Goyal
(Expert) 02 October 2016
If sub-registrar not agree to register, discuss with local lawyer and get court orders.
Also can approach district registrar office.
P. Venu
(Expert) 02 October 2016
The property, admittedly, is situated in Gujarat. Where was the Will executed! This aspect, in my considered opinion, is equally relevant.
Raj Kumar Makkad
(Expert) 02 October 2016
I think the place of execution of the will is irrelevant in the given case.
P. Venu
(Expert) 02 October 2016
Though the property is situated in Gujarat, it could be that the testator had been a resident outside Gujarat and the Will was executed within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay. In such scenario it is my considered opinion that the Will requires to be probated.
A majority of the businessmen in Mumbai are from Gujarat. They are settled there for generations.
Kumar Doab
(Expert) 02 October 2016
Expert DR. J C Vashista has explained.
Agreed.
Raj Kumar Makkad
(Expert) 02 October 2016
@ P. Venu Sir! As per my understanding, the will is to be defined in consonance with the rules prevalent wherein the mentioned property is situated and not at the rules prevalent wherein such will was executed.
P. Venu
(Expert) 02 October 2016
I have tried to gain further insight into the matter and it is seen that the Hon'ble Supreme Court has held in Clarence Pais v. UOI AIR 2001 SC 1151 -
'A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories.'
So, I stands corrected on this vital aspect. Thanks, Learned Expert Makkad for correcting me.
