Regarding the will
Adv M.D.Azhar
(Querist) 11 December 2014
This query is : Resolved
sir, there is a ancestral property of agricultural land. after the death of the father 4 sons individually cultivating the land. one of the brother who had no child bequeath his part of land by way of registered will to his nephew. Now as he passes away, entry regarding the will came in the knowledge so they challenged entire registered will, and further plead that, he can not make a will, because all the brothers have equal share in the property and property has not been divided.Now problem is that, deceased's land has been cultivated by his brother and his nephew since he was alive. that stand has been taken by us in written statement. but after hearing by both the parties court has granted injunction application of the plaintiff having said that, other co-share signature is not observed in a will so will prima facie looks suspicious and against the provision of succession act. Now i want to know that, is it necessary to obtain the consent of the other sharer, it is lawfully required? and lower court also has not given the findings regarding the possession, which is specifically plead by the defendant that, defendant has been cultivated a land since deceased was alive. yet court has not considered our possession. so i need your suggestion for the appeal.
P. Venu
(Expert) 12 December 2014
The will is complete without the signature of the co-sharer, provided it is genuine.
Adv M.D.Azhar
(Querist) 13 December 2014
yes u are absolutely right sir, i also read the sec-30 of the succession act. any male of hindu family who is competent to make a will may dispose any property by way of will is not it? yet court have passed above mentioned order. sir please help me out on the point of law.
ajay sethi
(Expert) 13 December 2014
Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, states that a coparcener is entitled to bequeath his share in a joint Hindu family property by testamentary disposition (by executing a will) or intestate succession. Thus, your brother can bequeath only his share in the joint family property in favour of his nephew . consent of other co shares is not required
Devajyoti Barman
(Expert) 13 December 2014
A co-sharer can always transfer his undivided share.
Adv M.D.Azhar
(Querist) 14 December 2014
thanks for the advise learned experts. i am going to file the appeal against this order.
T. Kalaiselvan, Advocate
(Expert) 15 December 2014
A co sharer can bequeath his undivided share of property in favor of anyone he desires so by executing a will.
