Legal Question in Wills and Trusts in India
My father left a will by which he gave away residential property to his all sons equally.But he said that the sons cannot sell the residence to anyone though they can relinquish individual share in favor of the remaining sons .
Is such a restriction against selling valid and legal?
If yes then does it invalidate the will or it invalidates only such restriction while the will will be valid?
3 Answers from Attorneys
Such restriction is perfectly legal and valid
there cannot be any restriction as against law. this restrict is illegal. it violates the transfer of property act. no restriction on a property can be imposed that it cannot be sold. it can be partitioned and sold as well. you need to seek a declaration from the court that such condition is legally unsustainable.
The condition is legal and is saved by the principle of "election" under Transfer of Property Act. If you are not happy with the condition, you may forgo your share as beneficiary under the will. It is like : "take it, or leave it". Therefore, the will or the restriction may not be invalidated by any court on this ground.
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