How to enforce registered will and evict uncle from grandfathers self-acquired property

Dear Client,

To enforce your grandfather's registered will, establish your mother's clear title, and evict your uncle from the self-acquired property in Dehradun, the primary step is to initiate a probate petition in the appropriate court, as probate is highly advisable, if not practically mandatory, for establishing clear title to immovable property, especially when disinheritance and potential disputes are involved.

Since the witnesses are deceased or untraceable, your lawyer will need to prove the will through secondary evidence, such as proving the signatures of the testator and witnesses, and leveraging the fact that it's a registered will. Only after your mother's ownership is legally established through probate should you issue a legal notice to your uncle demanding vacation, and if he refuses, then file an eviction suit in the Civil Court.

This multi-stage legal process is likely to be time-consuming, and expensive, due to court fees especially stamp duty for probate, which can be a percentage of the property value and legal fees. To minimize delays and disputes, it is crucial to immediately engage a highly experienced property and succession lawyer gather all relevant documents, avoid any self-help measures, and be prepared for a potentially lengthy legal battle.

Dear Client,
A will is valid indefinitely after the testator's death and can be enforced at any time. The beneficiary in whose name the will is written gets an indefinite right to get it executed anytime after the death of the testator, as the will remains valid for time immemorial. The person who makes a will expresses his/her wishes to be executed after their death by certain persons named in the will. The persons named in the will to execute it are called its executors. The executor of the will is required to file a petition and the original will to the competent Civil Court having territorial and pecuniary jurisdiction over the suit property for a grant of probate. The executor of the will has to pay the applicable court fees depending on the value of the property/assets. The court asks the petitioner to establish the testator’s proof of death, proof that the testator’s will has been validly executed, and confirm that this is the deceased's last will. Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public. If there are no objections, then the Court grants the Probate/LOA to the executor who distributes the property to the beneficiaries as per the wishes expressed by the deceased owner/testator in his/her Will. The Madras High Court in the case of N.Durga Bai vs Mrs.C.S.Pandari Bai, judgment dated 27/02/2017 relying upon the Supreme Court's judgment passed in in Babu Singh and others vs. Ram Sahai Alias Ram Singh (2008) 14 SCC 754 ruled that if the attesting witnesses are dead the plaintiffs can very well prove the will by resorting to Section 69 of the Indian Evidence Act by examining one of the persons who has acquaintance with the signature of any one of the attesting witnesses and also the executant of the document. Further, the Supreme Court in the case of V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584, decided on 17.07.2020, held that Section 68 of the Evidence Act contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act. The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him, but he must also prove the attestation by the other attesting witness. Once the beneficiary gets their share of the property, post probate of the will, they can initiate an eviction suit in the jurisdictional civil court against the persons who are occupying the property unauthorisedly. seeking an order of eviction and injunction, and compensation in the form of 'mesne profit'. He can also file a criminal suit against the persons in the competent Court of the Magistrate under Section 441 of the Indian Penal Code (now Section 329 of Bharatiya Naya Sahitya(BNS) for illegal encroachment and criminal trespass. So, given the procedure of transfer of the deceased's property to the beneficiaries and the averments of the Hon'ble Supreme Court and the High Courts, you may consult with an experienced professional for more clarification and to understand your rights and remedies to navigate the issues in the right way.