Intestate death
deepa
(Querist) 29 July 2013
This query is : Resolved
hello friends. I am facing a peculiar problem. A widow, Madam M passed away some years back intestate. She had two properties, Plot No 1 and Plot no 2, which was taken over by her sons A and son B. There was an oral understanding between the two brothers but nothing in writing.
They did not try and get the Properties mutated in their names. As on date the two plots stand in the name of Madam M.
Son B, who was in possession of Plot 2, passed away recently. Son B, left behind a will and left this Plot no 2, in favour of his son.
The son now wants to sell this Plot No 2 but the problem is that the property, i.e. Plot no 2, is still in the name of the deceased grand mom, i.e. Madam X on the land records.
What should the son do to get this property now mutated in his name? His father though left him plot no 2 in his will, this Plot no 2 was not mutated at the time of his death in his name.
Any suggestions please??
regards, deekhush
ajay sethi
(Expert) 29 July 2013
as far as will is concerned you have not mentioned where the property is situated . if you are in Mumbai probate is necessary of the will of son B . on the basis of probate you can make application for mutation of property in your name . since M died intestate son A is also a legal heir to the property . is he willing to execute deed of relinquishment for the same
deepa
(Querist) 29 July 2013
thanx Mr. Sethi for your prompt response. The property is situated in Mumbai.
So I suppose the best option would be for the son to (i) get his fathers will probated?
and (ii) get a relinquishment deed executed from the heirs of son A, since son A has also passed away.
ajay sethi
(Expert) 29 July 2013
yes probate would be advisable .
R.K Nanda
(Expert) 29 July 2013
nothing to add.
prabhakar singh
(Expert) 29 July 2013
Probate would be granted only when any executor has been appointed in the will by testator otherwise Letter Of Administration
(LoA)has to be applied.
After obtaining any of the two,that is Probate or LoA ,as the case may be,Mutation would be required to be applied with proof of death certificates of grandma and mom as well as Son B.
It would be required to be stated that the two plots 1 & 2 originally belonged to X and on her dying instate it devolved on M(state the relation and provision of Hindu Succession Act)and M also died instate then plots devolve on her sons A & B who mutually went for partition & so divided the plots that plot 1 came to the share of A and plot 2 came to the share of B whereafter B died living a will in favor of his son and accordingly mutation can be sought in his favor on basis of probate or LoA.
In probate or LoA ,as the case may be, A (or his heirs if A is dead) should be made party pleading partition between A & B so that A got exclusively plot 1 and B got plot 2.And get a no objection affidavit filed by A (or his heirs if A is dead)so that Probate or LoA gets granted in terms of will with respect to plot 2.
It would not only save cost of a registered
relinquishment deed but shall also be in conformity of the Will.
deepa
(Querist) 29 July 2013
thank you Mr. Prabhakar for your detailed reply. The problem is that the grandson of Madam M (deceased) and son of Mr. B (deceased) can apply for probate and try and get Plot no 2 (which currently is still in the name of Madam M)in his name. However Mr. A, first son of Madam M, has also passed away and his heirs are not keeping good relations with the grandson, so getting a relinquishment/NOC and making them part of the probate proceedings appears difficult.
Is there any way I can get the will probated without making the heirs of son A as part of these proceedings?
And how much time does it usually take to get a probate??
prabhakar singh
(Expert) 29 July 2013
Yes ! That is possible.You can leave them .But in case they appear on their own and file objection that both the plots are still
joint and there was no partition between A and B,except this no problem.
deepa
(Querist) 30 July 2013
thank you all for sharing your views..
regards, deepa
