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

We received a query regarding a complex ancestral property issue. An ancestral property located in a town in Rajasthan was partitioned among three brothers: Mr. Ramesh, Mr. Suresh, and Mr. Dinesh. Mr. Suresh, the eldest brother, wished to give his share of the land to his nephew, Mr. Alok (Mr. Ramesh’s son). To this effect, Mr. Suresh executed a document on a stamp paper, stating that he was relinquishing his rights to the property in favour of Mr. Alok. Unfortunately, Mr. Suresh passed away before the property transfer could be formally registered with the sub-registrar. Now, Mr. Alok is facing uncertainty about how to legally transfer the property into his name based on this unregistered document.

Advice in such cases

Navigating property disputes, especially those involving ancestral rights and unregistered documents, requires a careful and strategic approach. Here are some immediate steps to consider:

• Secure the Original Document: The most crucial piece of evidence is the document written on the stamp paper. Keep it in a safe and secure place. Make high-quality photocopies and digital scans, but always preserve the original.
• Gather All Property Records: Collect all related documents concerning the ancestral property. This includes the original partition deed, land revenue records (like Jamabandi or Khasra Girdawari), mutation records, and any previous sale or transfer deeds.
• Identify Witnesses: If the document executed by your grand-uncle was a will, it would require attesting witnesses. Try to identify and contact these witnesses, as their testimony is vital for proving the will’s validity in court.
• Avoid Confrontation: Do not get into heated arguments or confrontations with other legal heirs of the deceased (your grand-uncle). All communication should be calm and preferably documented.
• 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 is governed by civil laws, not criminal laws. The primary legal statutes that come into play are:

• The Hindu Succession Act, 1956: This Act governs the inheritance and succession of property for Hindus. It defines what constitutes ancestral property and how it devolves upon the heirs.
• The Indian Succession Act, 1925: This Act deals with wills and their execution. A key point here is that under Section 63, a will must be in writing, signed by the testator (the person making the will), and attested by at least two witnesses.
• The Registration Act, 1908: Section 17 of this Act lists the documents for which registration is compulsory (e.g., gift deeds, sale deeds, relinquishment deeds involving immovable property). However, Section 18 specifies that registration of a will is optional. An unregistered will is perfectly valid if it is proven in accordance with the law.
• The Indian Evidence Act, 1872: This act will be crucial for proving the authenticity of the will and the signatures of the testator and witnesses in court.

If you are the complainant

If you are in Mr. Alok’s position, you are the complainant or plaintiff seeking to enforce your right. Your course of action would be as follows:

• Probate Proceedings: The primary legal remedy is to file a petition for ‘probate’ of the will in the competent civil court. Probate is the judicial process of validating a will. Once the court grants probate, the will becomes a legally certified document, and you can use it to get the property mutated in your name.
• Suit for Declaration and Partition: If other legal heirs of your grand-uncle dispute the will, you may need to file a civil suit for declaration of your title and, if necessary, for partition of the property to separate your share.
• 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

As the person whose rightful inheritance is being potentially denied, you are the victim of the circumstances. Your focus should be on establishing the legitimacy of your claim.

• Act Promptly: Do not delay in taking legal action. Delays can sometimes be used against you by the opposing party, who might claim you have acquiesced to the existing state of affairs.
• Gather Evidence of Intent: Besides the will itself, collect any other evidence that shows your grand-uncle’s intention to give the property to you. This could include letters, emails, or testimony from neutral family members or friends who were aware of his wishes.
• Protect the Property: If you fear that other relatives might try to sell or create a third-party interest in the property, you can seek an injunction (a stay order) from the court as part of your main suit to maintain the status quo until the case is decided.
• 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 the police have no jurisdiction in matters of property title and inheritance. This is a purely civil dispute. The police will not register an FIR or intervene to decide who the rightful owner is. Their role is limited to preventing any “breach of peace” or cognizable criminal offence. For instance, if one party tries to forcibly dispossess the other or if there is forgery of documents (which would be a crime under the Bharatiya Nyaya Sanhita, BNS), only then can the police get involved. You should approach a civil court for resolution, not a police station.

FAQs people normally have

• Is a will on a stamp paper that is not registered valid?
• Yes, a will is not required to be registered under the Registration Act, 1908. Its validity depends on whether it was properly executed and attested as per the Indian Succession Act, 1925, not on registration or the type of paper it’s written on.
• What if the other legal heirs of my grand-uncle challenge the will?
• If the will is challenged, the court will require you to prove its genuineness. You will need to produce the attesting witnesses in court to testify that the will was signed in their presence. The court will then decide the matter based on the evidence presented by both sides.
• What is the difference between a will and a relinquishment deed?
• A will comes into effect only after the death of the person making it (testator). A relinquishment deed, like a gift deed, takes effect immediately upon execution and must be registered to be valid. The nature of your document is a key legal question your lawyer will help you determine.

What evidence is required?

To succeed in court, you will need to present strong evidence, including:

• The original will or document executed by the deceased.
• The death certificate of the testator (your grand-uncle).
• Testimony of the two attesting witnesses who signed the will. This is often the most critical evidence.
• Documents proving the property is ancestral and proving the ownership of the deceased (e.g., partition deed, revenue records).
• A family tree to establish the relationship between the parties.
• Any other supporting evidence showing the testator’s sound state of mind and his intention to give you the property.

How long will the investigation take?

Since this is a civil matter, there is no “investigation” in the police sense. The process is one of litigation in a civil court. The duration for resolving such cases can vary significantly. A simple, uncontested probate petition might be resolved in a year or two. However, if the will is contested by other legal heirs, the lawsuit can become a full-fledged trial, which could take several years to conclude in the trial court, with the possibility of appeals to higher courts.

Advocate Sudhir Rao, Supreme Court of India