Legal Question in Real Estate Law in India

I am a foster daughter. My father passed away five days after registration of a will. He has willed all immovables - living rights to my son who is 18. Then on to his heirs and then to their heirs without powers of alienation until the fifth generation (gets absolute powers). My son is to collect rental income from the properties - part of it to be donated to charity - a particular educational inst. and to medical.

Two tenants not to be evicted lifetime unless they wilfully walk out of the property. One of the tenants to collect rents and give it to the legatees; after the tenant's death his son will collect rent and give it to the legatees. Note that this tenant already has a lifelong lease for the property (written 2 months before the will) he rents from my father. He also made my father rewrite the will of earlier years and register it five days before my father died.

My son is 18, studying abroad and does not want to be disturbed now. Ready to give me whatever powers needed to handle all the props. Both of us are NRIs.

1. Is the will valid regarding alienation, inheritance (most properties are ancestral - father got it from his father who got it through partition).

2. How do we pay income tax? Shd my son get PAN card? or can I pay on his behalf? Can he make a settlement to me or give a general power?

3. Can I change the properties to my name using the legal heirship certificate that I have?

4. If we sell the properties (if we are allowed to sell) shd both of us sign the documents?

5. Can the tenant who has knowledge or copy of the will have powers in any way to trouble us. Is he an executor by implication?

6. Can the properties be donated to charity? Can the tenant stop it?

7. Pls note that this tenant is the only tenant who has still not paid the rent for November.


Asked on 12/26/09, 5:40 am

1 Answer from Attorneys
RAJIV GUPTA (Cell: +91 9811284735) [email protected]

a will can only be executed regarding self acquired property and not regarding unpartitioned ancestral property. once has to understand this important aspect as well. secondly, your son can execute a power of attorney in your favour and you can manage the properties whatever way you like but u cannot sell them as your son has not got the ownership rights of the property as he is merely a trustee for his descendents. again, the nature of property would decide whether the will is tenable in the eyes of law.

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Answered on 12/27/09, 9:57 am


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