Transfer of property post father's death
snehahatalkar
(Querist) 25 February 2015
This query is : Resolved
We are two sons and a daughter and mother left post father's death. Can someone pl help on below questions-
1. Is a Succession Certificate necessary to be obtained from the court? What is the percentage of court fee charged of the property in Mumbai Civil Court?
2. Does obtaining a Succession Certificate mean that every asset shall have 4 owners who will deal jointly with such assets? - Or the Court assigns each asset to a different heir basis valuations?
3. Is it possible to transfer individual assets to nominees named therein basis an affidavit and an NOC of other 3 members?
4. If the daughter intends to claim a share in the property, should a suit for partition be preferred over a suit of succession? What is the difference between the two?
5. If a Suit of Partition is initiated, will the court assign individual assets or joint ownership of all assets.
6. In case of assignment of joint ownership of all assets, can one heir dispose of his share in the property - subject to nature of such property and asset class.
Thanks & Regards
Anirudh
(Expert) 25 February 2015
1. Legal Heir Certificate is required in respect of Immovable properties.
2. Succession Certificate is required in respect of movable properties.
3. One has to apply to the jurisdictional Tehasildar for Legal Heir Certificate. In the application, one has to indicate the complete list of legal heirs, their names, age, relationship with the deceased etc., and request for the grant of legal heir certificate. The Death Certificate is also to be attached. There may be nominal fee for this. After receipt of the application, the Tehasildar will take steps to make enquiry in the locality and then grant the legal heir certificate. On the basis of the legal heir certificate, the property left behind by the deceased can be got mutated in the records.
4. It is only in those cases where there is no 'nominee' specified in respect of any movable property (e.g. Bank Account, Fixed Deposits, Bank Lockers, Insurance policies etc.) one has to go in for succession certificate. There is a prescribed court fee based on the value of the movable properties.
5. Legally speaking all the legal heirs have equal right/share in each of the property left behind by the deceased. That does not mean that even some of the impartible assets will be broken into pieces and given to each one. For instance, if a cow has been left behind - the cow will not be cut into pieces and given to each legal heir!
Now having come to know the contours of the Legal Heir Certificate and the Succession Certificate, you will be advised to consult a local lawyer, discuss things and then take the matter forward.
snehahatalkar
(Querist) 25 February 2015
Thank you.
1. Does it refer to the Jurisdictional Tahsildar of the place where each of the immovable property is located? So will there be a separate legal heir certificate for every immovable property?
2. I understand every legal heir named in the certificate shall have ownership over the particular property, hence - Is it mandatory to name all four of us in each certificate, if there are several certificates of several immovable properties?
3. The intention is to lay out each of the immovable properties independently to an individual heir to the non interference of the other three.
4. Which are the sources of reference for the above for further study; being a law student in final year, I endeavor to do the case study myself at this stage.
Thanks & Regards
snehahatalkar
(Querist) 25 February 2015
The query is open as yet.
Thank you.
snehahatalkar
(Querist) 27 February 2015
Another important question is - where one of the three children is mentally incapacitated, would he be eligible for an equal share - who can be appointed a guardian in that case?
Anirudh
(Expert) 27 February 2015
Jurisdictional Tehasildar means the Tehasildar under whose jurisdiction the deceased person normally used to live.
The legal heir certificate is not 'immovable property' specific. It is independent of that. Even if the deceased had not left any property behind, still if you want legal heir certificate the same can be given. Therefore what is being stated in the legal heir certificate is that so and so are the legal heirs of the deceased concerned. That's all. If there are any properties left behind by the deceased, then the legal heirs can claim their respective shares in the said property. On the basis of the same legal heir certificate, share in other properties, wherever situated can also be claimed.
In case, property "A" has to be given to Mr. X independently and Y and Z do not want any share in it, then Y and Z have to give a registered relinquishment deed in favour of X. On that basis X will become absolute owner of the property A.
Similarly, in respect of property "B", if the same is to be given to Z, then X and Y have to give registered relinquishment deed.
Approach the jurisdictional Civil court and file an application to be appointed as Guardian. Court after taking into consideration the pleading and statement of facts etc., will decide.
Guest
(Expert) 27 February 2015
Good, several academic queries on the same page without stating the real problem!
Please indicate the nature of problem, if any you really have, and how you are affected, instead of asking academic type questions for general knowledge.
snehahatalkar
(Querist) 27 February 2015
Thank you Anirudh ji. Your knowledge and guidance has been of immense help.
Mr Dhingra - if you take the trouble to read carefully - all the details of the problem, related facts, background of the case, my concern with the issue and my relation to the case have been clearly at the opening statement itself.
Thank you for your time in any case.
Guest
(Expert) 27 February 2015
Dear Sneha,
Thanks for trying to prove me wrong, when you say, "if you take the trouble to read carefully - all the details of the problem, related facts, background of the case, my concern with the issue and my relation to the case have been clearly at the opening statement itself." Don't think that I did not take any trouble to read your questions carefull, including the introductory sentence before posting my respnse. Of course your concern can be deciphered from the whole description when you said, "being a law student in final year, I endeavor to do the case study."
But the hard fact is that this does not seem to be your personal problem, but a query with mere information to gain knowledge to solve your academic queries, like, is, what, if, etc.
Several cross-questions arise out of your own hypthetical description. For example --
(1) From where the question of nominees arises, when you have not stated the numbers and status of property/properties and who of the siblings or mother are the nominees?
(2) From where the question of NOC of OTHER 3 members arises, when you have stated one surviving member (mother) left?
(3) From where the question of partition has arisesn when you have not stated whether the assets have been transferred to the name of the nominees or not and whether what is their response on partition amongst the legal heirs?
(4) From where the preference of suit for partition over a suit of succession arises, when you have not stated whether the nominees have applied for transfer of properties in their names ignoring any one or the other legal heirs?
Further, your question, "will the court assign individual assets or joint ownership of all assets" is quite hypothetical, when no move has yet been made by you to file any suit.
There can be several more questions on your hypothetical description.
So, from the description of your questions, any one can guess that the problem does not seem to relate to you in person, as you seem to have added the introductory para just to show as if you are one of the three legal heirs amongst which the assets have to be shared. Moreover, you have stated the mother to have left, but not stated where and why left and whether she denounced her share in the name of any of his sons or daughter.
Even if the matter relates to you, it also transpires clearly, as if you don't want the mentally incapacitated child to get his share and even if you have to give due share in his name, your intention is to know, who can be appointed as a guardian in that case, but you have not stated, who of your brother or sister is the major and eldest one of the other two of them or who is interested or has the consensus of becoming a guardian of that child.
So, your smartness is quite visible from the description to hide the real problem, which you or other surviving members of the family may be facing.
Please don't mind, you are still a student, but you seem to think as if you are the wisest person on earth and others are fools. SO BETTER GAIN SOME PRACTICAL EXPERIENCE IN THE LEGAL FIELD BEFORE YOU DECLARE SOME EXPERIENCED PERSON WRONG OR AN IDIOT.
snehahatalkar
(Querist) 27 February 2015
You have yourself assumed the status best suited for you in the last line of your reply. Good.luck! I.don't have so much time to get offended and reply to people.like you.
Guest
(Expert) 27 February 2015
Wishful thinking on your part, sneha! Only idiots, not sensible persons, can think others as idiots. But, I can smell about your doubtfull & dishonest intentions at least towards your mentally incapacitated brother and mother, who is stated to have left.
snehahatalkar
(Querist) 27 February 2015
Jaisi jisko soch! It's time to smell the skeletons in your own closet rather than knocking on others doors Mr.Dhingra.
Wonder what has frustrated you so much in life to pick up on petty matters like these for a person of your age.
God Save your soul.
Guest
(Expert) 28 February 2015
@ Sneha,
I am not frustrated. But your query vwery well reveals that you are frustrated when you do not seem to get any share out of the assets of your deceased father and are thinking of using various tricks to enable you grab major slice of assets by deceitfully forfieting rights of others. If not that intension, why did you avoid reply to my questions. Naturally, you don't have the answers to my queries, as you have the fear to get exposed well to your utter dismay.
snehahatalkar
(Querist) 28 February 2015
You first decide yourself what you want to say- am making up hypothetical cases or this is a true case lol! I really pity your desire to keep flinging insults talking of intentions putting people down! Wow! And that too all assumptions! You are simply great Dhingra! You should meet up I will explain you all the answers with legal notices.
Now stop your Timepass and mind your business. If you have any.
Guest
(Expert) 28 February 2015
You stated, "I.don't have so much time to get offended and reply to people.like you," but your post clearly indicates you are enraged and have spared time to get offended. Also, it seems, you don't have any reply to my questions. Ok. well and good.
Moreover, your desire in asking me, "You should meet up I will explain you all the answers with legal notices," is like expecting the source of water to go itself to the thirsty person to quench his/her thirst. It is you, who is desirous of seeking solution to your so called problem, not me. So, you have to come to me or supply the desired information on this very page consisting of your problem, if you really don't have any ill intention towards your other family members.
