relinquishment deed

 If a property has joint owners, for example Hindu joint family property, one joint owner may give up his/her rights over the property in favour of another. This is referred to as a release/relinquishment. A release or relinquishment is not referred to in the Transfer of Property Act. It is a term that has arisen out of usage. It is a transaction that is similar to a transfer and amounts to a transfer. : A release of rights in immovable property should be by a written deed and registered. The registration takes place in the office of the Registrar within whose jurisdiction [the area over which the Registrar exercises his/her authority] the property is situated.

Procedure

Procedure : Stamp duty must be paid as per the laws of your state, depending on the value of the property. [Each state has a law which prescribes the value of the stamp paper required for a particular deal/transaction. The state government fixes the market value of properties in different areas depending on the location and, demand etc. Stamp duty cannot be calculated for a value lesser than this fixed value. There may be separate stamp duties prescribed for a release in favour of family members and a release in favour of others.

1.  The property  (as of today) stands registered in the records, in the name of the deceased person (father).
 

2.  The property (as of today)  DOES NOT STAND IN THE NAME OF the legal heir's.
 

3.  Hence the  "legal heir's" cannot execute any  "relinquishment  deed" in favour of anybody,  which could otherwise be termed as  "misrepresentation"

4.  A  "relinquishment deed" can be executed  "O N L Y"   by the registered   "ALIVE"   owner and nobody else, including the heir apparent. 

5.  The property of the deceased (father) has to be first transferred in the names of the legal heir, as per his registered "Will" (if available),  else a procedure (or thru arbritration) registered in the Court will have to be followed.

ONCE the property is registered in the name of the legal heir's,  only then the "relinquishment"  procedures prescribed by Adv. A.V.Vishal (as above) can be followed.
 

Keep Smiling .... Hemant Agarwal
 

I agree with Hemant ji. Reliquishment deed can only be executed by the owner of the proerty.

Dear Hemanth & Suchitra

I differ on the view expressed by you. Relinquishment should not be construed in strict sense viz. only if there is ownership rights relinquishment can be executed, even if there is an interest in the subject matter then relinquishment can be executed. In the instant case the querist has stated that they are all majors and the LR's of the deceased who is none other than their father. Since the deceased died intestate based on the succession law governing the deceased all the LR's can apply to the court to succeed the property based on the interest created in the property on death of the owner and not on ownership rights. 

Yes Sir, Thanks and I agree with you on this. But still , in this circumstance , is there any need to execute a reliqueshment deed by the LRs ?

It is only for the purpose to safeguard the interest of the mother that the deed is being executed, else, under other circumstances the LR's may pose problems in future and dispute.

I endorse legal opinion of Vishalji but mother should also safeguard future of her children through a registered will after tranfer of properties in her name.

1.  "Creation of Interest" is not equal to "rights of owner".
 

2.   Creatiion of Interest in the property, is always sub-judice issues, till  a RIGHT has been established.
 

3.  A Right can be established, ONLY & ONLY when a rght has been transferred on records  and "Creation of Interest"  is a fiction for the projected purposes.
 

4.  Between  "creation of Interest"  and  "execution rights",  there may crop up other vested interests or other successors, thus diluting the present successors interest in property.
 

5.  Hence, ONLY when the rights of a property is absolutely transferred, it can be established and executed for purposes of  Sale, Reliquishment, lease etc...
 

6.  Based on  "creation of interest",  a right cannot be established for purpose of  sale, reliquishment or lease or etc...
 

7.  A non-successor or a non-heir, can also claim "interest" in the property.  AND this cannot be settled by the instant successor and if it so happens, the instant successors cannot relinquish anything, which is under dispute or which is not duly transferred to them (absolute right over property)
 

8.  To relinquish anything, a person should have absolute right (and not a legal fiction right) over the property.  One cannot relinquish anything that does not belong to him.
 

9.  Creation of Interest is a conditional interest.  Absolute right is not a conditional interest.   Creation of Interest is disputable, whereas  "absolute right" is not.
 

10.  Under the HSAct, the son is the legal heir and by default creates  "an absolute Interest" on his parents property.  BUT, But, but,  "SUBJECT TO", the wishes of parents, who MAY NOT bequeat him anything, thereby nully'fiing his  absolute legal interest in his parents property.
 

11.  Here it will be impossible for the son (as above), to state that he has "created an interest" in the parents property (deceased or otherwise)  and that he is relinqishing his heirical rights on the property to any other person.

Above meant only for understanding purposes and not otherwise.

Keep Smiling .... Hemant Agarwal
 

Your reply has the answer refer:

10.  Under the HSAct, the son is the legal heir and by default creates  "an absolute Interest" on his parents property.  BUT, But, but,  "SUBJECT TO", the wishes of parents, who MAY NOT bequeat him anything, thereby nully'fiing his  absolute legal interest in his parents property.
 

As the property belongs to the deceased father, the son is also a legal heir under Class I and since it is an intestate property, the sons and daughters including the mother has eaqual right in the property which cannot be denied even by the mother unless the deceased had willed the property in the name of his wife. What ever terminology you used be it deemed interest, fictional interest, absolute interest etc... the fact is the sons or daughters can claim partition of the property in future, Hence if a relinquishment deed is executed than there will not arise any problem to the mother and after her demise the property will devolve upon the children automatically.

1.  If the children have "relinquished" their rights to the mother,  (subject to the deceased dying intestate), then they forfeit their HSAct  right's  "absolutely".
 

2.  If the mother decides to  "Gift or Donate or bequeath" away the properties to some third party,  the sons cannot claim any rights under any circumstances, after the demise of mother, due to their earlier reinquishment action and no partition or whatever would be possible.
All rights are extinguished, after the reliquishment action, which in itself is  "irrevocable".

p.s. : The querist  "ghanshyam" (above), has never mentioned that the deceased died "intestate" or has made a "registered will".
3.  Only if a registered will is present and opened, ONLY THEN a "legal right" is created, under HSAct, on the property of the deceased,  for relinquishment purposes, subject to the portions or rights of percentages of the bequeathed properties, as described in the Will.
 

4.  A "legal right" is fictional right and not "absolute right".  Absolute right is derived after the property is registered in the records.  In "absolute rights", a owner can sale, lease, relinquish, gift, donate, or will".  BUT in  "legal rights", one has to get court orders to have  "absolute rights".

Keep Smiling .... Hemant Agarwal

for intellectual discussion sake :

1.  In the first instance, If the deceased has registered-willed his "own acquired property" in the name of his own wife, THEN the "other legal heirs" have no right on such property and partition issue becomes non-tenable.

The beneficiary wife of the deceased person, holds  "absolute right" over such "self-acquired" property of her husband,  IF THE DECEASED HAS NOT INCLUDED THE NAMES OF  "OTHER LEGAL HEIRS"     The beneficiary wife, holds absolute right to "Gift or Donate" to any third party, and the original legal heirs would have no right whatsoever on it.

Here, if the beneficiary rights to property to the "other legal heirs",  WERE TO BE GIVEN, then the deceased would have mentioned it "mandatorily" in his will to fulfill conditions under the HSA Act.

2.  EXAMPLE,  presuming deceased will-maker has one house, as his "own acquired property"
 

a)  deceased has two 2 sons and one wife.
 

b)  deceased executes a registered will, bequeathing the house to his wife.  Non of the legalheirs are aware of this registered will.
 

c)  Son "XYZ" thinks (obvious) that he has legal "interest" over his fathers "own acquired" house AND that after demise of father, he will be entitled to his interest over his fathers property.
 

d)  Son "XYZ" then makes a "relinquishment deed"  in favour of his cousin "santa",  relinqishing his projected & presumed right over his fathers house.  Mr. Santa is happy and assured of property due to the relinquishment deed of Mr. XYZ, and even starts making dream-castles, WHICH IS NOW BASED ON his "deemed interest" in the house of father of "XYZ".
Here, A third party "deemed interest" is created.
 

e)  Till on-date of relinquishment deed, the said property is not in name of "XYZ" who makes the deed on presumption of his guaranteed "deemed interest" under the HSA Act, on the property.
 

f)  On demise of father, Will is opened and is found that house is lawfully "bequeated" to Mother and sons have no right over the house component.  NOW this is perfectly within the parameters of the HSAct, and the son XYZ, cannot contest it and accepts it without any dispute.

QUESTION:
i) What happens to the "relinquishment deed", of XYZ, which WAS made on presumption of "deemed interest", on his fathers house.
ii)  Could XYZ, really make the deed, "without" actually having any established rights or ownership rights,  just on the basis of his  "deemed interest"
iii) what is the position and rights, of Mr. Santa, in whose favour the "relinquishment deed" has executed.  Can Santa sue XYZ for false misrepresentations.
iv)  Did XYZ, breach any laws or violated any laws.

discussions invited

Keep Smiling .... Hemant Agarwal
 

I agree

Regards
adv.kamal.grover@gmail.com

I had advantage of going through all the replies. The problem posed by Ghanshyam is very simple. The query itself suggests that the father has died intestate, hence all the children want to transfer the property to their mother. In such a circumstance, all the LRs become entitled to their share. They become owners of their undivided shares with a right to ask for partition. The children can execute a joint release deed of their shares in all the properties and register it at one place, irrespective of the lication of the property. As stated by Mr. Vishal, the registration charges , stamp duty etc differs from state to state. The next stage is to file an application for succession certificate by the mother and children jointly with a prayer to issue succession certificate in the name of mother alone. It should be averred in the application that the children have no objection to issue certificate in the name of mother alone.  Once the application is allowed, the mother will become the only successor. With due respect I do not subscribe to the views expressed by learned Mr. Hemant Agrawal.