Why a will is not enough for family property in Maharashtra

Families with a flat in Mumbai, a plot on CIDCO lease in Navi Mumbai, a house in Thane and a business are often told that a will has settled everything. It has rarely settled everything. A will is one document in a set. The set includes the nature of each asset, the nomination sitting with the society or the bank, and, for property in Mumbai, probate.

Nomination is not succession

A nomination lets an institution know whom to deal with when the holder dies. In Sarbati Devi v. Usha Devi, (1984) 1 SCC 424, the Supreme Court held that a nomination under the insurance law does not displace succession. The nominee receives the money for the persons who are entitled.

Co-operative nominations need a more careful sentence. In Indrani Wahi v. Registrar of Cooperative Societies, (2016) 6 SCC 440, the Court was construing the West Bengal statute. It required that society to transfer the share to the nominee, and in the same judgment it left other members of the family free to pursue succession. Maharashtra’s sections are not those West Bengal sections. Do not cite Indrani Wahi as if it rewrote the MCS Act. Do use the distinction it drew: the society’s duty to act on a valid nomination is not the same question as who, among the heirs, owns the flat.

Under the Maharashtra bye-laws in ordinary use, a member nominates a person in respect of shares and interest. That lets the society move. It does not, by itself, decide title among heirs. Read the nomination form against the bye-laws of that society before anyone is told they have “become the owner”.

Probate, particularly in Mumbai

Section 213 of the Indian Succession Act, 1925, read with section 57, requires probate or letters of administration before a right as executor or legatee is established in court, in the classes of case those sections cover. For a will of a Hindu, Buddhist, Sikh or Jain touching immovable property within the ordinary original civil jurisdiction of the Bombay High Court, probate is the ordinary requirement, and it is sought on the Original Side. Societies, banks and lessors in the city commonly insist on it even when nobody has sued. A will in a drawer is not a document a secretary can act on because the family is, this month, in agreement.

The will may not cover the asset the family cares about

• Coparcenary property. Section 30 of the Hindu Succession Act, 1956 lets a Hindu will his or her interest in joint family property. It does not let one person will the whole house where daughters and sons are coparceners. After the 2005 amendment, a daughter is a coparcener by birth.
• Leasehold. A CIDCO lease, a society flat held on terms, or a tenancy passes according to that grant and its transfer rules. Permission and eligibility survive the testator.
• Shares in a company, an account in a spouse’s name, or a gift already completed. A later will does not undo them.
• A registered family arrangement made in the lifetime. A will that pretends the arrangement does not exist is an invitation to challenge it.
• A second marriage, an adoption, or a dependant’s claim to maintenance. The will is not the only statute in the room.

What a careful family actually does

Make a schedule that states, for each asset, whose name it is in, whether it is self-acquired or coparcenary, whether it is leasehold, and what nomination exists. Appoint an executor who will in fact apply for probate in Bombay. Registration of a will is optional. It is not proof of validity, but an unregistered will with interested witnesses and no contemporary note is harder to defend. Where the aim is to avoid a fight, a stamped and registered family arrangement made while the person is alive often does more work than a will that tries to do everything afterwards.