If you are stuck in such a situation, here is what to do.

Mr. Rohan Sharma is facing a complex family property issue. Decades ago, his father, Mr. Alok Sharma, purchased a plot of land in the city of Jayanagar. However, for personal reasons, he registered the property in the name of his own father, Mr. Rakesh Sharma (Rohan’s grandfather). Mr. Rakesh Sharma, who lived with his daughter, Mrs. Sunita Verma (Rohan’s aunt), until his recent demise, was the legal owner on paper.

The family now faces a legal predicament. According to the laws of succession, if Mr. Rakesh Sharma died without a will (intestate), the property would be divided equally among all his legal heirs, including his son Alok and daughter Sunita. This seems inequitable to Rohan, as his father was the one who funded the purchase. The primary concern is the uncertainty over whether his grandfather executed a will, potentially bequeathing the property solely to his aunt, Sunita. Mr. Alok, being elderly, is hesitant to initiate a direct confrontation with his sister. Rohan is seeking a way to legally ascertain the existence of a will and determine the current ownership status of the land without escalating family tensions.

Advice in such cases

Navigating property matters after a family member’s death requires a careful and strategic approach. Here are the initial steps to take:

• Conduct a Title Search: The first step is to visit the local Sub-Registrar’s Office where the property is located. You can apply for an Encumbrance Certificate (EC) and certified copies of the title deeds. This search will reveal the recorded owner of the property and if any recent transactions, like a gift deed or transfer, have been registered.
• Check for a Registered Will: While will registration is not mandatory in India, if Mr. Rakesh Sharma had registered a will, a record of it would be available at the Sub-Registrar’s office. You can inquire about this possibility during your title search.
• Check for Probate Proceedings: If a will exists, the beneficiary (in this case, possibly Mrs. Sunita Verma) would need to file for probate or a Letter of Administration in the jurisdictional court to get the will legally validated. You can have a lawyer check the court records to see if any such case has been filed.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

This situation involves several key pieces of Indian legislation:

• The Indian Succession Act, 1925: This Act governs wills (testamentary succession) and the distribution of property when there is no will (intestate succession). If no will exists, the property of the deceased is divided among legal heirs as per the rules laid out in this Act or applicable personal laws.
• The Hindu Succession Act, 1956: If the family is Hindu, this Act would apply for intestate succession. It specifies that a deceased male’s property devolves equally upon his Class I heirs, which include his son and daughter.
• The Registration Act, 1908: This Act mandates the registration of documents related to the transfer of immovable property, such as sale deeds and gift deeds. A title search under this Act is crucial to verify ownership.
• The Benami Transactions (Prohibition) Act, 1988 (as amended in 2016): This law is highly relevant. Since Mr. Alok paid for the property but it was registered in his father’s name, it could be considered a ‘benami’ transaction. The Act prohibits such transactions and states that the person in whose name the property is held (the benamidar) is the real owner. However, there are exceptions, and the legal position can be complex depending on when the transaction took place and the source of funds.

If you are the complainant

If you (like Rohan or his father, Alok) decide to pursue the claim, here is the course of action:

• Gather Evidence of Purchase: Collect all possible evidence that Mr. Alok Sharma paid for the property. This includes bank statements, cancelled cheques, loan documents, or any informal agreements or witness testimonies. This is crucial for establishing the source of funds.
• File a Caveat: To prevent any secret court proceedings, your lawyer can file a caveat in the jurisdictional District Court. This ensures that if Mrs. Sunita Verma files for probate of a will, you will be notified and given an opportunity to contest it.
• Initiate Legal Action: If no will surfaces and the other party is uncooperative, you may need to file a suit for partition to claim your legal share. If you have strong evidence of providing the funds, you could explore filing a suit for declaration of title, but this will be challenging due to the Benami Act.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you believe you are being unfairly deprived of a property right, the steps are largely the same as for a complainant:

• Secure Documentation: Immediately secure your copies of the property documents, death certificate of the owner, and any proof of your relationship or financial contribution.
• Assert Your Rights: If you are a legal heir under intestate succession, your right is established by law. Do not relinquish your claim without proper legal advice.
• Challenge a Suspicious Will: If a will is produced that seems fraudulent, forged, or made under duress, you have the right to challenge its validity in court during probate proceedings.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

It is important to understand that property and inheritance disputes are civil matters. The police have no jurisdiction to decide ownership or interpret wills. Their role is strictly limited to maintaining law and order. If you go to the police, they will not register an FIR for a property title dispute. They will advise you to approach the civil court. Police intervention only occurs if there is a criminal act, such as trespassing with force, assault, or forgery of documents, but the core issue of ownership will still be decided by a civil court.

FAQs people normally have

How do I find out if a will exists?
There is no central registry for all wills. You can check the records at the local Sub-Registrar’s office for a registered will. The most common way a will comes to light is when the beneficiary presents it to the authorities or files it in court for probate.

What if my father bought the property in my grandfather’s name? Can he claim it back?
This is complicated due to the Benami Transactions (Prohibition) Act. The law generally presumes the person named in the deed is the owner. Proving otherwise is very difficult. While there were some exceptions for properties held in the name of a father or son before the 2016 amendment, pursuing this claim requires substantial evidence and expert legal guidance.

What happens if there is no will?
If the deceased died intestate (without a will), the property is divided among the legal heirs according to the applicable succession law (e.g., The Hindu Succession Act or The Indian Succession Act). For a Hindu male, his children (sons and daughters) and his widow are Class I heirs and inherit equally.

What evidence is required?

To establish a claim in court, you will generally need:

• The original Sale Deed or Title Deed of the property.
• The Death Certificate of the deceased owner.
• An Encumbrance Certificate (EC) from the Sub-Registrar’s office.
• Mutation records and latest property tax receipts.
• A legally valid Will, if one is being claimed.
• If there is no will, a Family Member Certificate or legal heirship certificate to prove your relationship.
• Any evidence of financial transactions related to the property’s purchase.

How long will the investigation take?

In civil cases, the term is “proceedings” rather than “investigation.” The timeline can vary significantly:

• A title search and obtaining an EC can take a few days to a few weeks.
• If the matter is straightforward and all parties agree, transferring the property (mutation) can take a few months.
• If a lawsuit is filed (e.g., a suit for partition or declaration), the process can be lengthy. A contested case in an Indian civil court can take anywhere from 3 to 10 years, or even longer, depending on the complexity, appeals, and the court’s caseload.

Advocate Sudhir Rao, Supreme Court of India