Is declaration suit maintainable in case of unregistered will

First you have to prove will is genuine ,will registration is not compulsory , obtain p& SC.

Thanks for the reply. Isn't declaration suit meant to prove the genuinity of the will? My question is that can one file declaration suit if the will is only notarized?

You have to prove will properties belongs to you as per will and to prove it in court ,even it is declaration suit you have  to  exibit will and prove it.

Notarised will is valid for self acquired properties of your father, which has to be proved for properly executed by the Testator i.e., deceased.

When there is "some" dispute in "will" it shall have to be probated by competent civil court.

Filing of declaratory suit is misconceived and "wrong" advise which is not maintainable and likely to be dismissed, if not withdrawn with liberty to re-file.

Dear Dr. Vashista,

What is the purpose of a declaration suit in that case, if the will has to be probated anyway? 

Dear Mr. Gaurav Mittal,

Did you analyse my opinion and advise properly as I have clearly stated that filing of declaratory suit may not be considered in the facts posted ? 

Thanks and regards

Dr. (Maj) J C Vashista

To file declaratory suit the party  should have right ,title and interest over that property ,so first you have to prove will as genuine and to get right and title over it in competent court of law  after that if anyone Denys your title then you can file declaratory and injunction suit .

Dear Gaurav,

Thank you for your query! I am Aadil and I will try to answer your question.

The short answer to your question is NO. You should go for a probate instead.

Assuming that the property in question is self acquired, no person can object to a will made by a person with regard to his self acquired property as section 30 of the Hindu Succession Act, 1956, states that any Hindu can dispose of a property that is under their possession through a will, in accordance with the provisions of the Indian Succession Act.

Therefore it would be invalid to question the terms of a will, but an unregistered will can be questioned for its authenticity and chances of forgery. It must be understood that it is not mandatory in India to register a will, and therefore even an unregistered will is perfectly valid, provided there are witnesses present to attest for the authenticity of the will. If it can be proved in court that the unregistered will is valid, then the terms of the will can no longer be objected to by any one.

Section 2(f) of the Indian Succession Act defines probate as a copy of a will that has been certified by a court of competent jurisdiction through its seal, with a grant of administration of the will of the estate of the testator.

Section 34 of the Specific Relief Act, 1963 describes the purpose of a declaratory suit. In simple words with relation to this case, it can be read as: Any person who is entitled to or has the right towards some property, can file a suit against a person who is denying this right, and the Court in its discretion can make a declaration that this person is so entitled, and the plaintiff is barred from seeking any further relief in such suit.

Hence, a probate suits the purposes of this case more as if the authenticity of the will can be proved in Court, no objections towards the terms of the will can be raised by any of the legal heirs. Filing a declaratory suit would do the same thing as the Court would declare that you have the right towards this property but that would also require the Court to ensure the authenticity of the will first, and it also bars seeking any further relief from this suit. Filing a probate does the same thing, and also ensures that the terms of the will are not objected to.

I hope this helps. Thank you for your time and patience!

Regards,

Aadil

Dear Dr. Vashista,

One of my relatives is facing a declaratory suit based on an unregistered fradulent will in the Pricipal District Munsif Court. I showed this discussion and even after reviewing this discussion our lawyer is reluctant to raise any objections regarding its maintainability.

One of the plaintiffs of the suit is an advocate and the plaintiffs are illegally subrenting the property using the pending suit as as a means to enjoy the rent from the property as long as possible and cause mental and financial harassment to my relative who is a childless widow. The reliefs asked for in the declaratory suit are: 1) will is valid 2) permanent injunction against alienation/encumberment 3) permanent injunction against disturbing possession 4) restrain mutation of property. The total court fee paid for all these reliefs is Rs. 240.

As a lay person I could see that the plaintiffs should go through a petition for Letter of Administration since the forged will has not mentioned any executor. This petition has to be converted to a testamentary suit once my relative contest the will. I understand that only district court has jurisdiction for testamentary suit and the court fees may be higher. This suit will be similar to the declaratory suit but the only relief that can be requested is the validity of the will. Is my understanding correct?

I am not sure what will help me to convince our lawyer to raise appropriate objections to the suit, which in your expert opinion is not maintainable. Changing our lawyer again is not the best option for us.

Regards,

Balakrishnan P

Thank you for your suggestion. The plaintiffs obvisously have not mentioned the illegal possession and subrenting of the property in the declaration suit. 

The main clarification needed is the right legal procedure for proving the validity of a will. The plaintiffs in the case I mentioned have filed a declaration suit. There was strong input that such a suit is not maintainable.

The other option to prove the will validity seems to be filing a petition for a Letter of Administration when no executor is named in the will. Since a declaration suit is more favorable to the plaintiffs they seem to have used it.

Any case laws regaring the maintainability of a declaratory suit for will validity will be useful for discussing this further with our lawyer for the purpose of raising suitable objections to the declaration suit.

Facts of your case are different to other (relative's) case. 

Law applicable for alleged "fraudulant" will and a "genuine" will (which can be ascertained in probate petition of the will).

Collection and enjoyment of rent from such property is altogather a different issue, which cannot be clubbed with "will" in law. 

You have posted mixed question of law vis-a-vis facts of the cases, it is better to show case file to another local prudent lawyer for appreciation of facts and professional advise.

Dear Dr Vashista: Thank you for your suggestion to consult with another prudent local lawyer for our legal services needs. Though your suggestion is very practical and valid implementing this by the helpless defendant for the third time may not be very easy. 

It looks like I have posted many mixed questions of law without realizing it. The only question of law that is of immediate interest is the maintainability of declaration suit based on a will.

In the declaration suit I mentioned, the defendant, who is a childless widow, was not aware of the existance of the will the plaintiffs are using. The will states that the late husband who was very ill has executed the will giving ownership of two properties to the plaintiffs after the life time of his wife. The plaintiffs are the son and daughter of the late husband's sister and the daughter is a practicing advocate. One of the properties is in the possession of the plantiffs though the defendant is the absolute owner of this property.

The plaintiffs have asked for four reliefs I mentioned earlier in my message. There was a strong input in this forum that such a declaration suit is not maintainable since the plaintiffs had no right in the properties when they filed the declaration suit and they have to first prove the validity of the will through a testamentary court instead of filing a civil suit for this purpose. Is this input still valid or not? If it is valid can I have some case laws that will be useful for our lawyer to raise appropriate objections?

Dear Aadil (Student): Your writeup was informative and you may be of assistance for the case law information needs mentioned above.

Dear Gaurau Mittal: I am curious to know the current status of the declaration suit you filed in August 2022 based on your father's will.

To my understanding, a declaratory suit as to enforcement of the Will is maintainable in cases where, on the death of the testator, the property has devolved upon the legatees by operation of law. However, in cases where probate is mandatory and the legatee has only a prospective interest, declaratory suits cannot be the maintainable.