Oral will
Prabhas Saxena
(Querist) 02 March 2014
This query is : Resolved
Respected seniors plz assist me in the following matter:-
Mr. Rajeev purchased one acre agriculture land in Bhopal on the name of his mother's brother(Mamaji). Mamaji before his death divided all his property b/w his five daughters and sons but kept this particular piece of land intact and told all his legal heirs to return this to Mr. Rajeev. Now after mamaji's death recently, all his legal heirs want Mr. Rajeev to take his land back. Problem is that the cost of land is grown to a level that title transfer through sale deed or gift deed would be a costly affair. What can be the cheapest mode to get this transfer done. Can Mr. Rajeev file a succession claim case on grounds of the oral will of the deceased(owner), to get the transfer done in natural manner without bearing any significant costs or seniors have some other tried and tested technical procedure for the same.
Dhanyavaad
ajay sethi
(Expert) 02 March 2014
gift deed attracts only 2%stamp duty on market value of property . it is not substantial amount . further you can in gift deed pay stamp duty as per ready recorder rates which would be generally lower than market rates of property .
even for wills you need to pay court fees which would be a substantial amount . in the present case there is no written will duly signed by deceased in presence of 2 attesting witness . under indian evidence act you have to lead evidence of one AW to prove the will .
Guest
(Expert) 02 March 2014
You could get a Settlement Deed Executed.There is only a Standard Stamp Duty and Registration fee for Settlement Deed which would much lesser than Rs.50000/- Consult a Local Lawyer for drafting with all documents
ajay sethi
(Expert) 02 March 2014
if deceased was a hindu he could not have made oral will . it has to be in writing and attested by 2 witness .
Section 57 read with Schedule III makes Sections 63 of the Act applicable to all Hindus. Section 63 of the Act relates to execution of unprivileged Wills and reads as under:
Execution of unprivileged wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall executed his will according to the following rules:
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and such of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Rajendra K Goyal
(Expert) 02 March 2014
Transferring through a gift deed is better way as suggested.
Prabhas Saxena
(Querist) 03 March 2014
Thanks for Replies to all seniors.
I can broadly confer two methods one is of gift deed(by Ajay Sethi Sir & Rajendra Sir) and other of Settlement Deed(Rajkumar Sir).
I would like to bring into notice that, i suppose, even transferring via gift deed would be a two step procedure because the owner is dead so he cannot gift directly. So i doubt that firstly it has to be devolved according to intestate rules among the five class 1 heirs and then those can gift it.
Plz through some light on this so that i may draw final & exact procedural conclusion.
Dhanyavaad
prabhakar singh
(Expert) 03 March 2014
You have rightly understood that ORAL WILL IS NOT POSSIBLE.
You have also rightly understood that only heirs of MAMAJI CAN MAKE GIFT now.Intestate Devolution is ipso facto phenomena but getting mutation order before gift in favor of heirs would be best way to proceed.
As regards to settlement deed I doubt if it is possible between heirs at one hand and an stranger (the prospective donee) on the other because he does not have any subsisting right or title or interest in the property desired to be settled in his name.To me a settlement or relinquishment is possible only between co/or/joint/owners.
Guest
(Expert) 03 March 2014
I do agree with Expert Mr.Prabhakar singh The Settlement Deed could be with in family members only.The Correction is accepted.
R.K Nanda
(Expert) 03 March 2014
nothing to add more.
Guest
(Expert) 03 March 2014
@ Mr.Prabhakar Singh Ji I only should Thank You for the Correction Sir
Biswanath Roy
(Expert) 03 March 2014
DEED OF GIFT WILL BE THE BEST SOLUTION.
Guest
(Expert) 03 March 2014
Well advised.
T. Kalaiselvan, Advocate
(Expert) 04 March 2014
In my opinion, all legal heir can execute a settlement deed jointly in favor of Rajeev by reciting that this is being done as per the last wish of the deceased title holder, by paying the appropriate stamp duty, without going for mutation or transfer of records on the names of legal heirs of the deceased
Guest
(Expert) 04 March 2014
@ Author The Settlement Deed Could be made only with in the Permitted decree of Relationship other wise it would be treated as gift deed if done with out considerations
Prabhas Saxena
(Querist) 06 March 2014
Lot of Thanks to all Experts.
@ T. Kalaiselvan ,for your different opinion i would like to tell u that one more person assisted me same, ie the heirs making a unanimous statement that this gift was the last wish (WILL) of the deceased, thus demanding to execute it.
Once again Dhanyavaad to all respected seniors for prompt assistance.
ajay sethi
(Expert) 07 March 2014
thanks for your appreciation
