A person generates wealth for his survival, comfort and luxury. He earns wealth for growth of his family and children. When becomes old same children start talking of inheritance of his wealth while he is living.

There are various provisions of law to bequeath property :
a. after death of a person, which is WILL or Vasiyat. When you make a WILL your inheritance is governed by Indian Succession Act 1925. This is very common practice and people always make WILL during their lifetime. This WILL or Vasiyat operates or say becomes live after death of make of WILL. This is where entire drawback or lacuna lies. Court even permits registered WILL in a way rewrites last wish of the deceased. Is it correct to do that? Once challenge to the WILL is permitted the Probate application is converted into Suit. Which takes decades to come up for hearing. Resultant the parties to avoid litigation and waste of time settle the claim in most of the matters. The question arises is whether this was the last wish of the deceased? Answer is No. But it happens.
b. Next is inheritance governed by personal law.
i. For Hindus its Hindu Succession Act 1956. There are two school of thoughts Dayabhaga which is prevalent in West Bengal where son gets inheritance in fathers property only on death of the father. While in rest of India Mitakshara School of Law is followed. In this a child in the womb gets coparcenary rights in the family property.
c. Hindu WILL requires to be probated.
ii. Islamic Law
1. The Holy Quran
2. The Sunna – that is, the practice of the Prophet
3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point
4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.
Muslim law recognizes two types of heirs, Sharers and Residuary. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuary would take up the share in the property that is left over after the sharers have taken their part.

A will executed by a Muslim testator is not subject to the compulsory probate requirements under law. This would be a subject matter of Mohammedan personal law (which differs in its application among Shias and Sunnis). However they do file for probate for transfer of plot of land and other properties in Mumbai.

d. In case of a Parsi section 213 (2) of the Indian Succession Act 1925 states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the WILL in question is made or the property bequeathed under the WILL is situated within the “ordinary original civil jurisdiction” of the Bombay high court.

e. For WILL made by a Christian probate is not mandatory under Indian Succession Act 1956.

To obtain probate it takes long-time. Now a days 3-4 years even if not contested. So, what is another option?

For Entire India:
The Donor who is father or mother and is Senior Citizen can execute Gift Deed which will transfer property in presentie. But there are risks. Children or the Donees may start misbehaving and remove Donor from the house by use of force or torture. Most of cases parent is shifted to old age home.
Remedy :

a. Make your Gift a Conditional Gift.
b. Section 23 in The Maintenance and Welfare Of Parents And Senior Citizens Act, 2007
Your Gift Deed must be a conditional Gift and must specify what is provided in Section 23 (1) of the Act.
Lets see the provision first.
23. Transfer of property to be void in certain circumstances.
(1)Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
Meaning thereby that Gift Deed must contain a clause that done shall provide the basic amenities and physical needs of the Donor else the Deed of Gift shall be deemed to have been made by fraud or coercion or undue influence. If your Deed of Gift does not provide such clause it may be difficult to get it revoked.
My Suggestion:
Irrespective of whether the provision in the Deed of Gift for revocation during life time of a Senior Citizen, it shall be revoked once complain of harassment is made. Laws can be made on modus and circumstances under which it can be revoked.
Now once Gift is made flat /property will be transferred in the name of beneficiary while donor is still living. No need to take Probate.
This Document attracts Stamp Duty as provided by State Government and the Registration Charges as applicable.
Next document is Family Arrangement:

What is family Arrangement?
A family arrangement is an agreement made amongst the members of the same family linage intended for the benefit of the family for the purpose of either for compromising doubtful and/or disputed right or by preserving the family property or maintaining cordial atmosphere within the family and for security of the family by avoiding litigation.

For more details click on this link https://shrutidesai.in/deed-of-family-arrangement-law/
If Family Arrangement is there one can avoid Probate.
In Maharashtra a specific provision is made in Maharashtra Co-operative Societies Act 1960 is concerned and it reads as follows:
154B13. Transfer of interest on death of a Member. – On the death of a Member of a society, the society shall transfer share, right, title and interest in the property of the deceased Member in the society to a person or persons on the basis of testamentary documents or succession certificate or legal heirship certificate or document of family arrangement executed by the persons, who are entitled to inherit the property of the deceased Member or to a person duly nominated in accordance with the rules :
Provided that, society shall admit nominee as a provisional Member after the death of a Member till legal heir or heirs or a person who is entitled to the flat and shares in accordance with succession law or under will or testamentary document are admitted as Member in place of such deceased Member :
Provided further that, if no person has been so nominated, society shall admit such person as provisional Member as may appear to the Committee to be the heir or legal representative of the deceased Member in the manner as may be prescribed.
In the above provision for transfer of shares and the flat in the society anyone document is required
They are:
i. testamentary documents or succession certificate or
ii. legal heirship certificate or
iii. document of family arrangement executed by the persons, who are entitled to inherit the property of the deceased Member or
iv. to a person duly nominated in accordance with the rules
Hence in my view society cannot insist on Probate or Letters of Administration. It is advisable that other states should adopt the same provision. As such probate is not a document of title.

If Society is doing member can sue the Committee members.
The government must consider that it is very difficult to obtain probate. When there is a delay of 4-5 years or the property would stuck in litigation other avenue must be explored as discussed above and if society refuses to transfer committee should be made personally liable for damages. Because the Committee is not Judge. If transfer is challenged its for the court to decide about title.

Shruti Desai.
13th April 2024