My fathers self aquired property .....
Atul Kumar Va
(Querist) 26 September 2013
This query is : Resolved
The flat is 10 years old and the building also.
The flat was in my Mother and Fathers name........The payment of the flat was done by my father thru his earnings n full in cheques only.
As the tradition is in India to keep property in wife's name so my father kept the property in the joint name of my Mother and himself respectively.
My lovable mother expired 3 years back.
She didn't make any will.
The property is a Flat with Share certificate.
It has POSSESSION AGREEMENT as 12 yrs back in Gujarat, for new residential property, registration was not required.
1.My father is alive but my loving Mother expired 3 years back.
2. We are 3 siblings and above 35 and well settled and married.
a)One Son in India living with Father.
b)Second Son living abroad with his family.
c) Daughter - Married and living abroad with her family.
3. Last year we 3 children gave Notarized NOC stating we give all rights in the same residential property to our father and the Property n share certificate be transferred to my Fathers name alone.
In NOC we gave up all rights in the property to our father.
a)I gave Indian Notarized NOC.
b) My Sibs gave Foreign Notarized NOC which we registered here with STATE GOVERNMENT in Gujarat.
And the society transferred Share certificate in my Fathers name 100%.
Now my question is :-
1. I have asked a panel Lawyer from Bank to give me Title Clearance of the same residential property for Mortgage purpose to Bank.
But the Bank panel Lawyer is saying that even though SHARE CERTIFICATE is transferred and 100% in my father's name now and u have given NOC with "giving up ur rights in the same property" ........
U still have the right in the property and NOC is not enough .....and that He requires Registered RELINQUISH DEED from 3 of us or POWER OF ATTORNEY TO give TITLE CLEARANCE for the property for Bank for Mortgage purpose.
He says that we 3 siblings still have rights in the property eventhough share cerificate is 100% transferred in my fathers name and we giving full NOC.
I al also attaching a specimen copy of the NOC which we 3 Siblings gave to society.
It also says we give up all our rights in this residential property and transfer the rights to our father.
2. Last year for Banking purpose, I had got the Title clearance done for the same property by another Banks panel Lawyer and he gave the Title clearance as he only asked NOC from 3 of us and SHARE CERIFICATE IN MY FATHERS NAME.
But then we didn't pursue for Banking purpose with that Bank coz then we didn't have any requirement to mortgage property till Title clearance was done.
Anyhow Lawyer gave Title clearance as we paid for it.
This Bank Lawyer only suggested that for TITLE CLEARANCE, he only needs to see and have SHARE CERTIFICATE only and 100% in my fathers name and NOC from SIBLINGS and nothing else.
And Society Lawyer also asked us NOC from us 3 siblings to transfer share certificate only and 100% in my father's name.
So, We gave what society Lawyer required.
And it was done smoothly last year ........
Now, I would like to which Lawyer is correct ?
Why is registered relinquish deed required even after we giving NOC and share certificate is transferred only and 100% in my fathers name ?
And I guess now he is the only authorized signatory of this property and full owner.
Please suggest me what the law has to say about this as all advocates have there own opinion about this issue.
What does Law says about this issue.
I am also attaching the format n wordings of the Notarised NOC that we gave to society(also to society lawyer) n the Bank panel lawyer.
Regards.
Atul Kumar Va
(Querist) 26 September 2013
This is the NOC that we gave ----->>>>
NO OBJECTION CERTIFICATE (NOC) FOR TRANSFER OF MY DECEASED MOTHER PROPERTY
AFFIDAVIT
I ______________aged about 39 years, by occupation and Electronics Engineer , residing at_______________S/O ________________________.
I do hereby solemnly affirm and declare on oath as under: -
1. That my beloved mother Late Mrs. _____________expired on __________ at _________India, leaving behind my father Mr _______________, myself, my brother Mr. _________ and my sister MS. __________ and as her legal heirs.
2. That my beloved mother Late Mrs. ____________ didn’t write any will during her lifetime as to the best of my knowledge.
3. That my beloved mother Late Mrs. __________ and my father Mr. _________ have immovable property in their joint name located at ______________, where my father and myself are residing.
4. That the above mentioned property is self-acquired by my father Mr. _________________
entirely through his self-earned wealth and paid by cheques from his own bank accounts. I have never contributed financially in cash or kind for the purchase or maintenance of the property.
5. That I have never filed any writ/suit/petition in any court of law for any claim of my rights over above mentioned property.
6. That I have no objection if the above mentioned property is transferred in the name of my father Mr._____________.
7. That I have no objection in transferring the housing society share certificates solely in the name of my father. I hereby release and transfer all my rights in the share certificate to my father Mr. ____________ with immediate effect.
8. That I irrevocably and unconditionally release and transfer all my rights in the above mentioned property to my father Mr _________________ with immediate effect.
9. That I am deposing voluntary and without any pressure in my right & fit state of health of body, mind & soul.
I, ________________, S/O Mr. _______________, the above named deponent do hereby solemnly affirm and verify that the contents of paras 1 to 9 are true and correct to the best of my knowledge and belief. No part of it is false and nothing material has been concealed there from.
Solemnly affirm on Date ______________ at location __________
XYZ
Signature: __________________
Deponent
Ms.Nirmala P.Rao
(Expert) 26 September 2013
Dear Client,
Since your father is alive, and it's his self acquired property, it's better- you get a no objection Affidavit from him duly notarized- for mortgaging the property in favor of the bank.
Atul Kumar Va
(Querist) 26 September 2013
We have already give NOC and format of the same I have posted above ....
And now again it will be very time consuming to get another NOC from abroad.
But I guess the NOC which we gave to my father and society is very much comprehensive.
Atul Kumar Va
(Querist) 26 September 2013
Actually he is applying for " Reverse Mortgage " and its available only to elders above 60 yrs and given in there name only.
So,he doesn't need to give NOC to anyone coz its my father himself who will avail the loan in his name only.
Ms.Nirmala P.Rao
(Expert) 26 September 2013
Dear Client,
I said, if your father is in India and if you want a loan etc from the Bank in exchange for mortgage etc- then take a notarized affidavit from your father and if he is abroad, get a Foreign notarized affidavit from him through post and file it before the bank panel of lawyers in proof of your title as your father can dispose of his self acquired property in accordance with his wish,. Or, tell your father to apply for loan in your stead.
Atul Kumar Va
(Querist) 26 September 2013
Respected Maam,
My father is in India only.
As its Reverse Mortgage Loan facility, so it available in my fathers name only as he is above 60 and Reverse Mortgage loan facility is for Senior citizens only.
Now issue is that the bank panel lawyer is refusing to accept the NOC that we children gave last year to my father for giving up and transferring all our rights inherited by us from our mother's share in property.
He is also not accepting Society share certificate which is now solely in my fathers name after removing my deceased mothers name from the share certificate.
He is insisting for REGISTERED RELINQUISH DEED by us children to our father for this property.
But the same Property was given TITLE CLEARANCE CERTIFICATE in favor of my Father by some other banks panel lawyer for the mortgage purpose.
But we didn't take any mortgage loan that time even after TITLE CLEARANCE was done as we didn't have the need for funds then.
Dont know why 2 lawyers have different view and why both r interpreting law differently.
Wats the law......this is wat I would like to know.
R we 3 children legally done after giving NOC and getting the share certificate transferred in my fathers name after giving full NOC.
Is the property still not in my fathers name ?
Atul Kumar Va
(Querist) 26 September 2013
Title clearance that we r asking to Bank Panel lawyer is in favor of my father, so as for him to avail REVERSE MORTGAGE LOAN FACILITY in his name from the bank.
R.K Nanda
(Expert) 26 September 2013
consult lawyer personally.
Atul Kumar Va
(Querist) 27 September 2013
Its simple -
1. First bank panel lawyer from one bank, last year, has given title clearance in my fathers favor with
a) Share certificate in my fathers name
b) NOC (which i have posted above) from us 3 children for the property.
2. Now this new Lawyer from another bank panel is not giving Title clearance in my fathers favor as he is asking Relinquish deed and not accepting NOC from us 3 children and neither Share Certificate in my fathers name.
Dont know if this new Lawyer is legally correct in asking Relinquish deed only and not accepting NOC and Share certificate in my fathers name.
What does the Law say ?
ajay sethi
(Expert) 27 September 2013
bank is absolutely correct . inorder for the 3 children to relinquish their rights Deed of Relinquishment is required . it has to be stamped and registered .
contact a local lawyer and get deed of relinquishment done . it attracts nominal stamp duty as made in favour of close family relative .
Guest
(Expert) 27 September 2013
What I apprehend is that the dispute raised by the bank's lawyer is about the share of your deceased mother, which is transferrable amongst the family members. Since any of the family member can claim his/her share any time, the lawyer would have desired that no dispute should arise about the property in future. In that sense the lawyer is correct.
So, better give Power of Attorney to your father, if not willing to prepare relinquishment deed. Even if all the brothers/sisters give the relinquishment deed, all of them would still be entitled to get their consolidated share out of the property after the expiry of your father.
Atul Kumar Va
(Querist) 27 September 2013
Thanks for ur reply Experts.
2 of the 3 children r living abroad and in different continents, so how do children make Relinquishment deed ?
Plz advice.
Anirudh
(Expert) 27 September 2013
The children living abroad have to come one time to India to execute the Registered Relinquishment Deed. Without this, things cannot be taken forward at all.
Atul Kumar Va
(Querist) 27 September 2013
And what if 3 children make Power of Attorney and give it to our father ?
Can 2 children make Power of Attorney abroad and send it to India and will it be eligible here ?
Wat they have to do abroad to get the Power of Attorney which is eligible and legal n valid in India ?
Ms.Nirmala P.Rao
(Expert) 27 September 2013
Dear Mr.Lalit,
Yes! A duly executed and registered GPA issued by a Foreign Notary Public in accordance with Foreign Law is recognized in India. Please refer AIR 1971 SC 761 and several other judgments of Indian Courts in this connection.
