Noc from a us citizen for transfer of inherited property
KARTHIK RAO V
(Querist) 24 December 2018
This query is : Resolved
Hi
There is a property in the name of my uncle who passed away recently.
They have only one son who is a US Citizen and does not want to have a share of the inherited property and is currently in India temporarily.
Hindu Law applies here and There is NO WILL
The parents of the deceased are not alive
The only family members are : Deceased, Deceased's
wife, their son, their daughter in law, their grand-kids who are well below 10 yrs of age (I assume the grand-kids need not to be involved here as they are minors)
The process for the transfer of Khata is :
Transfer property jointly in name of deceased's son and wife (all the legal heirs)
(or)
Transfer property in name of a single family member with an NOC affidavit from the other legal heirs (No Gift deed needed)
In this case, to transfer the property to deceased's wife name, the authorities will demand an NOC Affidavit from the other legal heir i.e, the son who is A US Citizen
Hence, can he provide an affidavit on an Indian Stamp paper sworn in front of an Indian Notary even though he is a US Citizen?
(or)
Should he get the affidavit done in US local state, get it notarized and Apostiled there and Attest it by Indian Embassy and send it to India?
Also, do the same rules apply for a general Power of Attorney (POA) as well ? (For other transfers like Electricity, Water Supply etc)
Thank You
Vijay Raj Mahajan
(Expert) 24 December 2018
Yes as US citizen he can give affidavit in India nothing illegal in doing so.
As far giving his NOC etc.in favour of your Aunt's to get property transferred to her, check with local Municipality about mutation process there.
The legal heirship certificate is issued by the SDM office and after the death of your Uncle that will include name of all his heirs that will include his son and widow, that will help in mutation process along with NOC etc.of son.
Kumar Doab
(Expert) 24 December 2018
You want the Lady (mother) to be sole owner!
Which personal law applies in your case?
Are all involved Hindu?
Has the deceased father left any valid WILL?
Was mother of deceased alive as on date of his death?
What is this property left undispsoed by deceased say; some Flat in housing society or land/house under jurisdiction of LOCAL authority e,.g; MC?
Have you obtained death certificate, legal heir certificate from authority e.g; O/o Tehsildar.
Confirm!
Kumar Doab
(Expert) 24 December 2018
You may understand the basics and procedure is simple.
IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.
IT is not mandatory to probate the WILL in other areas. IT is not mandatory to register the WILL.
The WILL should just be valid. Unregistered WILL can be acted upon.
The last valid WILL prevails.
Succession opens on date of death; by inheritance or by testamentary succession (by valid WILL).
In case of Hindu male dying without disposing her estate/property in her life time by a valid/registered deed the 1st right is of ClassI legal heirs i.e Mother (if alive as on date of death), Wife (if alive as on date of death), sons, daughters……
The authority under whose jurisdiction property falls has a set procedure for such matters if NO WILL has surfaced; Intestate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Death certificates, legal heir certificate/affidavit (per local procedure-precedence) are basic requirements. Then authority shall act upon and transfer the ownership in the name of legal heirs. Obtain copy of updated mutations records showing share of legal heirs. This grants rights equal to that of owner to legal heirs. All legal heirs are at liberty to relinquish/release/transfer/gift/sell their share in anyone’s favor.
The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.
The legal heirs may also consider perspective of registered family settlement after the WILL and register it.
Check locally and comply with procedure. Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by Testamentary succession/ inheritance/probate in the name of legal heirs in mutations records.
Thereafter obtain copy of updated mutation records.
For partition by boundaries either decide amicably (best recourse) or take help of other elders of the family or panchyaat or court of law..
If WILL is not submitted to be acted upon then it becomes matter of succession per personal law that applies.
Although it is wrong since the WILL exists.
Check locally and comply with procedure.
Kumar Doab
(Expert) 24 December 2018
Since the son is in India he can chose any the valid/registered deed to give up his share e.g; Gift/relinquishment/settlement deed in favor of his mother.
Although some jurisdictional authority e.g; housing society may have provision for NOC, the registered deed e.g; Gift/relinquishment is better option than any NOC.
Your own very able LOCAL counsel can get IT done in a day.
LOCAL senior deedwriter can also help.
Dr J C Vashista
(Expert) 26 December 2018
Affidavit can be given but it will not serve the purpose.
He (your cousin) shall have to relinquish or gift his share to his mother by a registered deed/document.
KARTHIK RAO V
(Querist) 26 December 2018
Thank You all for the replies. Adding a little more information :
Hindu Law applies here without a WILL
The parents of the deceased are not alive
The only family members are :
Deceased, Deceased's wife, their son, their daughter in law, their grand-kids who are well below 10 yrs of age
(I assume hence the grand-kids need not to be involved here)
The process for the transfer of Khata is :
Transfer property jointly in name of deceased's son and wife
or
Transfer property in name of either of above with an NOC affidavit from the other (No Gift deed needed)
So my actual question was : The authorities demand an NOC Affidavit from the son (A US Citizen) to transfer the property in name of the deceased's wife.
Hence, can he provide an affidavit on an Indian Stamp paper sworn in front of a Indian Notary ?
(or)
Should he get the affidavit done in US local state, get it notarized and Apostiled there and Attest it by Indian Embassy and sent it to India?
Also, do the same rules apply for Power of Attorney (POA) as well ?
Thank You
KARTHIK RAO V
(Querist) 26 December 2018
Updated content to ensure all things are put
KARTHIK RAO V
(Querist) 28 December 2018
Opened New Thread : http://www.lawyersclubindia.com/experts/Noc-affidavit-from-a-us-citizen-for-transfer-or-property-ind-699281.asp
