Who has right to property after my loving mother ?
Atul Kumar Va
(Querist) 24 July 2012
This query is : Resolved
The flat is 10 years old and the building also.
The flat is in my Mother and Fathers name........The payment of the flat was done by my father thru his earnings only.
As the tradition is in India to keep property in wife's name so my father kept the property in the joint name of my Mother and himself respectively.
My lovable mother expired 2 years back.
She didn't make any will.
My father is alive.
We are 3 siblings and above 35 and well settled.
Now my questions are :
1. Is my father the sole owner of the property as he has purchased the property by his own earnings and paid thru cheques from his accounts which is documented.
2. Do we siblings have any automatic legal right to the share/part in my mothers name ?
3. As my father is sole surviving name in the possession agreement, so is he the sole owner of the property and owner now ?
4. Now we siblings want and have requested the society to transfer the share certificate in my fathers name but they r asking us siblings to give them NOC to transfer share certificate in my fathers name........is this legally correct ?
As we feel that as he purchased the property by his funds so it should automatically be his only............
We only need from our society that my mothers name from share certificate be removed and only my Fathers name should remain there and correction be noted at the back of the share certificate.
But they r insisting on NOC from us 3 siblings.
If we dont have any legal right on the property then how can we give NOC and who we r to give NOC to our father ?
The property is my fathers and it should go to him automatically and shares certificates also.
We can give NOC, but why should we give NOC to our father if its his property and made by his own acquired wealth and efforts ?
We feel very ashamed to do this act.
What does the law says ?
Please suggest me what the law has to say about this as all advocates have there own opinion about this issue.
Regards.
ashutosh mishra
(Expert) 24 July 2012
May be your father paid the entire consideration for the flat but since it was owned in joint name of your mother too,on the death of your mother,her 1/2 share owned has devolved upon her husband and children.
The society is right in asking NOC from all children of your mother to transfer it in the name of your father alone.
Anirudh
(Expert) 24 July 2012
The Society is absolutely right.
Suppose I pay the entire amount, and register the property in the name of X. As per official records, the property is mine or that of X?
Similarly, no matter that the entire funding might have been done by your father, but the fact remains that 50% of the property belongs to your deceased mother.
Upon her death, all her legal heirs are entitled to equal share in the said property.
Therefore, without the NOC from the legal heirs it is not possible to transfer the entire property in the name of your father. As simple as that.
It is your assumption that since your father paid the entire money, the property is entirely is his. LEGALLY WRONG. Therefore, there is nothing to be ashamed about in giving the NOC.
In this case, all you sons/daughters are very good and feel that the property entirely belongs to your father and therefore feel that no NOC need be given by you.
But think of a situation, where one of the legal heirs (not your case, yours is an exception), claims that he has a share in his deceased mother's share (50%) in the property? WHAT WILL THE SOCIETY DO?
It is a clear legal position that in the facts revealed by you, your mother is the joint owner of the property and upon her death, her share has to go to her legal heirs - whether they claim it or not. But if the property is to be transferred to any particular person (in this case your father), then NOC from the legal heirs is a must.
K.K.Ganguly
(Expert) 24 July 2012
50% of the property is owned by your father. Remaining 50% of the property which was owned by your demised mother is now equally and jointly owned by your father & all the 3 siblings.
Hence, you shall have to give NOC to the society for transferring the ownership of your share of the flat in the name of your father.
Atul Kumar Va
(Querist) 26 September 2013
The flat is 10 years old and the building also.
The flat was in my Mother and Fathers name........The payment of the flat was done by my father thru his earnings n full in cheques only.
As the tradition is in India to keep property in wife's name so my father kept the property in the joint name of my Mother and himself respectively.
My lovable mother expired 3 years back.
She didn't make any will.
The property is a Flat with Share certificate.
It has POSSESSION AGREEMENT as 12 yrs back in Gujarat, for new residential property, registration was not required.
1.My father is alive but my loving Mother expired 3 years back.
2. We are 3 siblings and above 35 and well settled and married.
a)One Son in India living with Father.
b)Second Son living abroad with his family.
c) Daughter - Married and living abroad with her family.
3. Last year we 3 children gave Notarized NOC stating we give all rights in the same residential property to our father and the Property n share certificate be transferred to my Fathers name alone.
In NOC we gave up all rights in the property to our father.
a)I gave Indian Notarized NOC.
b) My Sibs gave Foreign Notarized NOC which we registered here with STATE GOVERNMENT in Gujarat.
And the society transferred Share certificate in my Fathers name 100%.
Now my question is :-
1. I have asked a panel Lawyer from Bank to give me Title Clearance of the same residential property for Mortgage purpose to Bank.
But the Bank panel Lawyer is saying that even though SHARE CERTIFICATE is transferred and 100% in my father's name now and u have given NOC with "giving up ur rights in the same property" ........
U still have the right in the property and NOC is not enough .....and that He requires Registered RELINQUISH DEED from 3 of us or POWER OF ATTORNEY TO give TITLE CLEARANCE for the property for Bank for Mortgage purpose.
He says that we 3 siblings still have rights in the property eventhough share cerificate is 100% transferred in my fathers name and we giving full NOC.
I al also attaching a specimen copy of the NOC which we 3 Siblings gave to society.
It also says we give up all our rights in this residential property and transfer the rights to our father.
2. Last year for Banking purpose, I had got the Title clearance done for the same property by another Banks panel Lawyer and he gave the Title clearance as he only asked NOC from 3 of us and SHARE CERIFICATE IN MY FATHERS NAME.
But then we didn't pursue for Banking purpose with that Bank coz then we didn't have any requirement to mortgage property till Title clearance was done.
Anyhow Lawyer gave Title clearance as we paid for it.
This Bank Lawyer only suggested that for TITLE CLEARANCE, he only needs to see and have SHARE CERTIFICATE only and 100% in my fathers name and NOC from SIBLINGS and nothing else.
And Society Lawyer also asked us NOC from us 3 siblings to transfer share certificate only and 100% in my father's name.
So, We gave what society Lawyer required.
And it was done smoothly last year ........
Now, I would like to which Lawyer is correct ?
Why is registered relinquish deed required even after we giving NOC and share certificate is transferred only and 100% in my fathers name ?
And I guess now he is the only authrised signatory of this property and full owner.
Please suggest me what the law has to say about this as all advocates have there own opinion about this issue.
What does Law says about this issue.
I am also attaching the format n wordings of the Notarized NOC that we gave to society(also to society lawyer) n the Bank panel lawyer.
Regards.
Atul Kumar Va
(Querist) 26 September 2013
This is the NOC that we gave to society individually ------->>>>
---------------------------------------
NO OBJECTION CERTIFICATE (NOC) FOR TRANSFER OF MY DECEASED MOTHER PROPERTY
AFFIDAVIT
I ______________aged about 39 years, by occupation and Electronics Engineer , residing at_______________S/O ________________________.
I do hereby solemnly affirm and declare on oath as under: -
1. That my beloved mother Late Mrs. _____________expired on __________ at _________India, leaving behind my father Mr _______________, myself, my brother Mr. _________ and my sister MS. __________ and as her legal heirs.
2. That my beloved mother Late Mrs. ____________ didn’t write any will during her lifetime as to the best of my knowledge.
3. That my beloved mother Late Mrs. __________ and my father Mr. _________ have immovable property in their joint name located at ______________, where my father and myself are residing.
4. That the above mentioned property is self-acquired by my father Mr. _________________
entirely through his self-earned wealth and paid by cheques from his own bank accounts. I have never contributed financially in cash or kind for the purchase or maintenance of the property.
5. That I have never filed any writ/suit/petition in any court of law for any claim of my rights over above mentioned property.
6. That I have no objection if the above mentioned property is transferred in the name of my father Mr._____________.
7. That I have no objection in transferring the housing society share certificates solely in the name of my father. I hereby release and transfer all my rights in the share certificate to my father Mr. ____________ with immediate effect.
8. That I irrevocably and unconditionally release and transfer all my rights in the above mentioned property to my father Mr _________________ with immediate effect.
9. That I am deposing voluntary and without any pressure in my right & fit state of health of body, mind & soul.
I, ________________, S/O Mr. _______________, the above named deponent do hereby solemnly affirm and verify that the contents of paras 1 to 9 are true and correct to the best of my knowledge and belief. No part of it is false and nothing material has been concealed there from.
Solemnly affirm on Date ______________ at location __________
XYZ
Signature: __________________
Deponent
Atul Kumar Va
(Querist) 26 September 2013
Actually may fatheris applying for
" Reverse Mortgage " loan facility and its available only to elders above 60 yrs and given in there name only.
its my father himself who will avail the loan in his name only from a bank.
He is living in India.
Atul Kumar Va
(Querist) 26 September 2013
Kindly go thru my thread and advice rightly.
With high regards to Lawyers.
Atul Kumar Va
(Querist) 26 September 2013
Title clearance that we r asking to Bank Panel lawyer is in favor of my father, so as for him to avail REVERSE MORTGAGE LOAN FACILITY in his name from the bank.
