Regarding will & succession certificate
Himanshu
(Querist) 17 July 2013
This query is : Resolved
Hello advocates,
I need an opinion from you experts. I'm buying a property which was on husband and wife's name. Husband passed away last year and is now survived by only his wife and two children (both minors).
My questions:
1. Will his wife and two children be the only legal heirs or his parents too?
2. He has not executed any Will and his wife doesn't have any succession certificate from court. Will we essentially need succession certificate before buying the property?
3. If she doesn't have Will & Succession certificate -- can we ask for an affidavit stating all required declarations from her?
4. Will affidavit have any value in case her minor children claim the property when they become major?
5. Will I be safe in future (by showing affidavit in court as evidence) if any claim happens from his legal heirs?
6. Can this affidavit be registered at court or at local property registration offices to add evidentiary value to that document?
Could you help me getting answers of these questions. I'll appreciate your time spend on answering me. Thanks in advance!
Himanshu
R.K Nanda
(Expert) 17 July 2013
get property verified by local lawyer before
buying it.
Himanshu
(Querist) 17 July 2013
Thanks much for the reply. I however have verified the property by lawyer and after meeting him and analyzing this specific situation, I came across all these questions. Hence I seek some help on this forum.
-H
Dr. Jyothi Vishwanath
(Expert) 17 July 2013
Does the property belongs to the husband or it was ancestral property or earned by both the husband and wife.
If self acquired by the husband, then his wife, parents and kids all will have right in it.
Buyer does not require succession certificate from the court if the property is already mutated in the name of the wife. Check if all the title deeds are in the name of the wife.
Since minors have right in the property, wife cannot sell the whole property to you. She can only sell her share. If she wants to sell the property fully, she has to obtain permission from the court since the children are minor.
Better dont purchase such property.
Rajendra K Goyal
(Expert) 17 July 2013
Well advised by the expert Dr. Jyothi Vishwanath, nothing more to add.
Himanshu
(Querist) 17 July 2013
Thank you so much expert Dr. Jyothi for the very helpful advise.
The property was bought by both husband and wife together. No share of their parents so far. It's in the name of both. However, from the builder/society they have taken NOC after his death by submitting death certificate, affidavit & indemnity bond.
They do not have any Will or succession certificate. On the registered agreement with builder, it's still in the name of both.
Can you explain me your statement: "Check if all the title deeds are in the name of the wife" -- How can I check this? Should I ask for any specific document?
Also, bank legal officials told me that since husband is died & children are minor, according to the law wife will be the only heir in this case and she has full rights to sell the property for the welfare of her children. On the date of deed with me, she'll be the only owner and children can't claim in future, even if they do, they won't get anything. I'm not sure if this is correct but you all know better.
Can you suggest something?
Thanks again!
Raj Kumar Makkad
(Expert) 17 July 2013
I do not agree with the advice given above or of your lawyer. The share of the minor cannot be sold without obtaining the prior permission of a competent civil court. If the mother of the deceased is alive then an equal share shall also go in her favour.
Dr. Jyothi Vishwanath
(Expert) 18 July 2013
Mr.Makkad Jii. The above experts too said the same as you said. The share of the minor cannot be sold without the permission of the court.
Since husband and wife both have acquired it jointly,both have half share in the property. This is subject to ability to prove equal contribution in the purchase of the property, if any question arises.
In the half share of the husband, his mother definitely has a share along with the wife and minor children.
In the remaining half, the wife has full right.
So the wife who is now selling you can only sell her half share in the property and her share in the husband's half property. She cannot touch the shares of the mother of the husband and the shares of her children.
Himanshu
(Querist) 18 July 2013
Thank you expert Jyoti. I understood that wife can only sell her share and not her husband's mother and her children.
Now, if she takes permission from her husband's mother and children by executing an affidavit (notarized) stating she takes full responsibility to sell the property and to settle down any claims that arises in future by her husband's mother & children -- will that be considered by court if something happens?
-H
Dr. Jyothi Vishwanath
(Expert) 18 July 2013
As far as mother is concerned, she can be a co-seller and sign the sale deed.
For children, mother has to obtain the permission of the court.
Himanshu
(Querist) 18 July 2013
The seller party (wife) just called me up telling that she's applying for a Legal Heirship Certificate to provide me. As far as I searched on this forum, I got to know this document has stronger value than an Affidavit but lesser value than Succession Certificate in case of any disputes.
Do you suggest, I should accept the Legal Heirship Cert and make this deal happen? What will happen in case of any claims by his mother or her children in future? Will this certificate help me making my case strong?
Please help.. am getting more confused now :(
-H
ajay sethi
(Expert) 18 July 2013
is mother willing to execute deed of relinquishment in favour of her daughter in law?
Himanshu
(Querist) 18 July 2013
She says, mother has no interest in the property, but how can I be 100% assured - is a question.
Will Heirship Certificate have clearance (No objection) from both mother & her kids?
If not, can she request the (court) authority to put such language so that she gets full ownership to sell it without any legal heirs left?
Please help. Thanks.
Dr. Jyothi Vishwanath
(Expert) 18 July 2013
Heirship certificate only tells who are the heirs of a dead person.
It has nothing to do with no objection.
Court cannot give any such document.
I think mother can go to court and take court permission to sell minor's property.
Court will normally permit if genuine reasons exist.
Mother can sign sale deed as co-owner.
Raj Kumar Makkad
(Expert) 18 July 2013
Heirship certificate is just to show who are legal heirs of the deceased person but the major thing to which you are repeatedly overlooking is the permission from the court by way of filing the case against general public by the mother of those minor children. Unless courts grants permission to sale the share of the minors, you should not proceed qua the share of those minors.
ajay sethi
(Expert) 18 July 2013
mother has share in the property . since her son was 50%owner of the flat and he died intestate she has share in property . better avoid purchasing the concerned flat
Himanshu
(Querist) 18 July 2013
Excellent advise by expert Jyotiji, Ajayji and Makkadji. I think the importance now is to get permission from court to sell the property on behalf of both mother and their children. Otherwise this heirship cert won't work in this case.
Thank you all of you!!
-H
Himanshu
(Querist) 19 July 2013
Just a quick question - husband's mother having share in son's property is Hindu Act or Christian Act also has the same law?
This party is Christian and someone (bank's legal officials) told me that mother will have share in son's property only if they are Hindu. Is it correct?
If this is correct, that means husband's mother will not have any share in this property and once wife takes court permissions from minors to sell the property -- we should be good?
-H
Dr. Jyothi Vishwanath
(Expert) 19 July 2013
Even under the Christian Law, after the death of a son, his father has right to it.
if he has no father, then the right goes to mother...
