Undivided joint ownership : common or joint tenants
jagjit singh chander
(Querist) 04 August 2014
This query is : Resolved
My grandfather owned one house. Through his WILL he gave it to my father. Now
My grandfather and my father both are not alive. My father did not write
any WILL and the property is now jointly owned by his legal heirs which is
myself, my mother and my elder brother. I feel this is a case of
joint ownership of undivided property . My query is :this joint
ownership is Tenants in common type or Joint tenancy with
right of survivorship type ? Can my mother write her WILL
and give her one third share in the property to any of her two sons ?
( after her death )
Another point is
If she is afraid of the complication to get the WILL probated,
Now when she is alive can she add one of her son in the ownership of her one third share in the said property,so
that her share automatically goes to that son after her death without the WILL
getting probated? If yes does she still need to write the WILL
Hemant Agarwal
(Expert) 05 August 2014
1. While still being alive, the mother can make a duly stamp duty paid registered "Gift deed", of her share of the property to any son. This gift deed shall remain irrevocable. The Gift Deed will ensure smooth transaction without any hitches.
2. In Mumbai based properties, the will of a deceased persons needs mandatorily to be Probated. A property cannot be transferred based on a will document, till the will maker is deceased.
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jagjit singh chander
(Querist) 05 August 2014
This means my mother has " Tenancy in common " type of joint ownership in the property which allows her to write a WILL for her share and after her death her share shall not pass to the surviving co owners of the property, but to her own beneficiaries mentioned in her WILL. Pls verify ?
Secondly If she gifts her share to any of her son, she will lose control on her share as u said that gift deed shall remain irrevocable. She may feel unsecure if that son does not take care of her in the old age after receiving her share during her lifetime.
Instead of gift option can she give a declaration in the court, to include any of her sons as a joint owner in her share ( Joint tenancy with right of survivorship ) so that till she is alive , her that son cannot sell/ rent her share without her concern , however after her death her share automatically passes to that son who is the co-owner in her share. Pls help , if this can be done.
T. Kalaiselvan, Advocate
(Expert) 06 August 2014
though all of you are in joint and constructive possession of the property left behind as intestate by your father, all the three of you have equal rights on the legitimate share in the property respectively. If your mother is willing to to give away her share of property to any one of her son, she may 1) transfer her property by executing a registered gift deed or 2)She may relinquish her rights by executing a registered release deed in favor of the son she wishes to give away her share of property or 3) she may execute a Will in bequeathing her share of property in favor of the her son of her choice, this option will come into force only after her demise. If the Will is not disputed by anyone, the same can be acted upon without obtaining probate, but in Delhi the Will has to be probated, check it up locally.
Don't worry bout the tenancy n common or joint tenancy type of legal terminologies.
If you still have doubt, consult a local lawyer and take his further advise on the subject.
