umesh nagi 21 August 2018

Transfer of property

We have a 2 property in Delhi. The below are the details.

Property 1. Mother is the whole owner of the property.

Property 2. Mother + Son are the joint holder.

Case:-

1. Mother died in the year 2012 without any will.

2. Now, the mother have 4 legal hiers (Husband, Son, Daughter -1 & Daughter - 2)

3. As per the above said properties. Property 1 will have 4 shares & Property 2 (only mother share) will be divided in 4 shares. Right?

4. Husband died & made a WILL & mentioned that his share will be transfer to Daughter -1 whenever the case resolved.

5. Daughter 2 submitted an applicable to SDM, Delhi about her share & object on the said property. It just an application not stay by court of law.

6. Now, Daughter 1 is ready to release her share + father's share (Claimed via WILL) to SON of the family & put a demand for it. The money transaction will be via Demand Draft.

Question:-

1. Can the both share transferred by Daughter no 1?

2. If yes, then what kind of DEED can be prepared? SALE DEED or Released DEED or Relinquishment DEED?

3. SON is ready to go for a SALE DEED/ Released DEED and can bear the extra stamp duty.

4. Can the SDM objects on the SALE DEED/ Released DEED as the Daughter no. 2 already submitted the objection on the said property? If yes, then what will be the solution on it?

5. what will be the validity of the stamp duty purchased in form of stamp paper? I assume 6 months, but is it refundable if the stamp paper used & cancelled by SDM during the sale deed/released deed process?

Request the fraternity to give us a path. That will be really helpful to us.

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4 Replies

Kumar Doab (FIN) 21 August 2018

Which personal law applies in your case?

Are you all Hindu?

Was mother of deceased father alive as on time/date/month/year of his death?

What is this said case that needs to be resolved? Is IT contest to the WILL by daughter2?

Has the said WILL been duly acted upon without any cloud on IT or probated?

The draft of your query, more so narration of legal heirs indicates that you are all Hindu.

Confirm!

Kumar Doab (FIN) 21 August 2018

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……

In case of deceased Hindu woman dying without disposing her estate/property in her life time by a valid/registered deed ClassI,II is not applicable rather nature and source of property matters.

If the property is self acquired/earned/absolute in the hands of Hindu woman the 1st right is of her husband (if alive as on date of death) and sons, daughters…………

If property is acquired from husband side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of husband..

If property is acquired from parents side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of father..

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.

Kumar Doab (FIN) 21 August 2018

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.This may end scope of any future litigation.

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 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 (FIN) 21 August 2018

Gift (registered deed) is without consideration!

You have mentioned about release of share by daughter 1? IT may be possible to release with consideration as posted by you. However the exact share can be determined only after the WILL is duly acted upon without any cloud on IT or probated or if the probate fails?

Apparently IT may be possible to release the share that has devolved upon daughter1 from mother.

Approach a very able LOCAL senior counsel of unshakable repute and integrity specializing in Testamentary/succession/civil matters and well versed with LOCAL applicable rules/laws …. and worth his/her salt, can advise you in person after examining all docs, evidences on record.

There are able counsels at each location.

Check for resuch counsels at LOCAL civil courts, HC, SC…

Obtain proper legal opinion in writing.

Till finer nuances of the matter are made clear refrain from entering into any transaction, preferably.