Alternatives to release deed for buying inherited property
Zoltar
(Querist) 19 March 2018
This query is : Resolved
Hi
I want to purchase a flat in a cooperative housing society in Mumbai.
The current flat owner became an owner (the said owner) indirectly --The father died intestate and his mother became the owner as a nominee. The mother gave a letter to the society that her son would be the nominee. After the mother passed, the said owner became the owner of the flat as he was the nominee. He also provided NOCs from his two brothers who are foreign citizens settled abroad. These NOCs were notarized in the USA (not by Indian consulate).
1) Can the property title considered to be clear?
2) Do I need a relinquishment/release deed before buying the flat from the said owner?
3) If the said owner doesn't want to procure relinquishment deeds registered in India due to the time frame involved (or otherwise), what alternatives do I have to safeguard my interests?
---- a) I have heard that even if the brother give a specific POA (registered with SRO) to the said owner to execute the sale deed, that doesn't release their rights and interests in the property. What is my risk executing the sale deed through such a POA?
----- b) Instead of a release deed, I should get an indemnity bond from the said owner stating that should any dispute arise, the said owner will be responsible.
-- Attach that indemnity bond along with the sale deed to get it registered.
What is the legal standing of such an approach in case of a dispute after the sale is complete?
Thank you in advance for your help
Zoltar
Vijay Raj Mahajan
(Expert) 19 March 2018
NOCs of foreign nationals duly signed and notarized in USA is valid document, Indian Consulate attest the documents of Indian nationals only.
Secondly, the registered relinquishment or release deed of the two brothers of the seller along with registered sale deed, will be required in case the Society Rules so state or is required by the Society for transferring the flat in your name. Better get these clarifications from the Society office and local advocate of your area.
Zoltar
(Querist) 19 March 2018
Hi Mr Mahajan
Thanks for your response.
Actually, the consulate does attest documents if required for property transfer in India - even for foreign nationals.
In case of a dispute, does the Maharashtra Coop societies act supersede the Property transfer Act?
In that case, if the society bye laws don't require a release deed, will a simple notarized NOC from the legal heirs safeguard my rights in case of a claim post sale?
Thx
-nbs
R.Ramachandran
(Expert) 19 March 2018
Dear Zoltar,
All said and done the flat in question is an immovable property.
After death of the original owner, no doubt the Society would have transferred the share certificate in the name of his widow (as a nominee). Similarly, as the widow (mother) had nominated one of her sons, afterher death the society transferred the share in the name of the nominated son.
The nominee does not become the owner of the property. The nominee at best remains a trustee for the real legal heirs.
The legal heirs in this case are the three sons. The nominee cannot become the sole and absolute owner of the flat in question, unless his other two brothers give him a Registered Relinquishment Deed. Mere NOC will not do.
Alternatively, the two brothers can give him a Special Power of Attorney to him, to sell their respective shares and to sign the Conveyance Deed for and on their behalf. This Special Power of Attorney can be got notorised by the Indian Consulate in the USA.
Based on such Notorised SPA, the son at Mumbai can execute and convey the Sale Deed of the Flat in your favour and he has to sign thrice in the Sale Deed. 1 for himself; 2nd one for and on behalf of his brother; and 3rd signature for and on behalf of his third brother. This conveyance deed needs to be Registered with the Sub-Registrar's office by paying applicable Stamp Duty.
IF this is done, then your title to the flat will be legally valid OTHERWISE NOT.
Zoltar
(Querist) 19 March 2018
Mr Ramachandran
Thanks for your detailed response.
Is the conveyance deed the same as a sale deed? Or will it be a separate deed in this case?
Does the notarized (by Indian consulate) SPA need to be registered in Mumbai before executing the sale deed?
Thanks
zoltar
Zoltar
(Querist) 19 March 2018
Changing case to open.
This forum is great! I wish I had learnt about it sooner.
R.Ramachandran
(Expert) 20 March 2018
Yes, your understanding is correct that Sale Deed and Conveyance Deed are one and the same.
Zoltar
(Querist) 20 March 2018
Thanks for your help. Have a great day.
Ms.Usha Kapoor
(Expert) 12 July 2018
Agree with Vijay Raj Mahajan and Ramachandran
Ms.Usha Kapoor
(Expert) 12 July 2018
Agree with Vijay Raj Mahajan and Ramachandran
Ms.Usha Kapoor
(Expert) 12 July 2018
Agree with Vijay Raj Mahajan and Ramachandran
