Transfer of Flat Advice

In whose name the flat has been transferred after your father's death and as per his nomination? Nomination form contains the percentage of shares that each nominee gets. What was written in the form filed by your father?

What that nomination letter says?

Is that nomination letter is based on Sale of only for Society

The nomination has Mother receiving 60% of shares and me receiving 40%. The transfer is pending filing of appropriate paperwork

Which is the reason for my question.

-A

As per my knowledge (I am not a lawyer) the Nominee is not an heir and holds no legal rights. The nominee is only a caretaker. She/He has no ownership rights and ownership is by succession law of there is no will.

A will overrules nomination.

A sole nominee cannot sell the flat. On sale the cash received goes to all heirs. 

In fact I am at a loss as to why the nomination form has all these percentages, which anyway are not legal.

Can someone comment on this. Am I right?

Dear kumar menon

I agree with Audry.  Audry is right.

Nominee acts only as a trustee.  Nomination does not confer ownership/shares/rights.  The duty of nominee is only to disburse the assets/money to the legal heirs.  As your father has expired, you and your mother are the legal heirs and both are entitled to equal share. 

In my personal opinion your mother may simply execute a settlement deed (registered) in your favour settling her share on you so that you become the full owner of the property and based on the settlement deed you can seek the society to transfer the ownership in your name.  By this you become the full owner of the property. 

kumarmenon :

1.  Since you wish to have complete ownership & title of your fathers property (which is not possible via a nomination),  the only viable permanent legal option is file for a "Letter of Administration" (LA) in the competent court.

2.  All known and unknown  and other claimants will be a issued a court notice (including your mother).  The notice also shall be issued to your society, as a interested party.

3.  After all have filed in their reply (say) / statement / affadavit / relinqishment wishes  etc...,  the court, depending on merits,  will direct the society to transfer the "ownership & title"  of the said property to you (subject to various parameters in your petition)

4.  The above decree by the court, will enable you to permanently hold  clear "ownership & title" of the said property to you and to your legal heirs in future.

5.  A  "settlement deed",  is a private affair and does not involve other heirs / claimants and further does not  give "ownership & title" of the said property.  It is further challengable / disputable by other legal heirs / future claimants  and such "settlement deed"  itself ALSO  can be disowned easily by the parties themselves.

6.  ANY & ALL other procedures (Nominations,  Settlement deeds, etc... ) are always challengable and disputable in a court of law,  by various known / unknown future claimants, in the absence of a registered will.

Keep Smiling .... Hemant Agarwal

I have another suggestion. Since you both are nominees, why not transfer the flat to your joint names? The Society cannot refuse this. Both your names will appear on the share certificate.

If the flat is in both names, either member has voting rights, not necessarily the first member. However only one can vote.

Your mother can make a will leaving her 50% share to you and upon her demise, you will become sole owner of the flat.

Paying stamp duty and getting the flat transferred now is thousand times better than going through probate which will be infinitely costly and time consuming inviting litigation. Weigh the pros and cons of payment of stamp duty and paying court fee on probate plus lawyer's fee and10 years wait. There are hardly any wills that are not challenged. 

you  mother  just have to execute an indmenity bond that she do not have any objectionwhatsoever if the said flat is entirely transfer in the name of teh son i.e. you and further teh society shall have to give a public notice in the nes papers that they are transferring the said flat in the name on.....(i.e.)you and if anyone has any objection whatsoever they can contact the society. Further the society can ask for a registered release deed whereby your mother relinquinshes all her rights in the said flat. , along with an affidavit Cum NOC from your mother and even if they do not oblige the last thing to get a Legal heirship/Sucession certificate from the Hon'ble court.. Before acting on this legal advice consult your advocate/s.

Thanks Mr Pravin

I have a similar situation. I have met a few advocates and have gotten different advise

Please advise

My situation is as follows:

a) We have a commercial property in mahim - mumbai in my father's name

He passed away 2 months back.

2) I am the only nominee for this property.

3) I have my mom, 2 brothers and 2 sisters (all married)

4)

a)One advocate advised me to create gift deeds from my mom as well as brothers/sisters , gifting their share to me.

b) Another advocate advised me to create release deed for my mom and brothers sisters , releasing their share to me on 400Rs stamp paper.

I am confused as you have mentioned settlement deed.

Do not know which is the best option.

Pls advise

Regards

Vinod