Property transfer through release deed instead of will
Monish Shah
(Querist) 07 January 2015
This query is : Resolved
Dear Learned People,
There is a property in proper Mumbai (Maharashtra) which is in the name of my mother. I would like to transfer the property in my name with minimum possible stamp duty, hence the following two options I could think of.
1)Property transfer through will - A will can be made by my mother in which she can mention that the property will belong to me after her demise.
In this the property will get transferred to me after the demise of my mother and after the court order upon probate of the will. Hence, a long process and not sure when the property will get transferred in my name.
2)I become co-owner in the property and thereafter execute a release deed. - I can ask my mother to give me a small percentage of property (preferably by way of gift) , so that stamp duty is minimalistic. thereafter I can ask my mother to execute a release deed in my favor transferring the entire property in my name. The stamp duty on release deed is very less. I think this is a faster process with reasonable surety of time by when property can be transferred in my name.
I request your opinion on the 2nd way above as I am not sure whether it can work both legally and practically. Also, if any other way is possible I request yourself to kindly opine me on that as well.
Thanks and Regards.
Anirudh
(Expert) 07 January 2015
The second method will not work. This is for the reason, in the portion which belongs to your mother, you do not have any right. Therefore the question of relinquishing her right in favour of another (who does not have any share in it) does not arise. It can only be by way of GIFT/WILL.
Guest
(Expert) 07 January 2015
The Best way for Cost Effective Purpose Would be Settlement Deed Executed in your Favour by your Mother.The Total Expense Inclusive Of every thing would Be Less Than Rs.50000/- Inclusive of All expenses also .Consult your Concerned Registrar and Seek the Guidance of Senior Document Writer There.
Dr J C Vashista
(Expert) 08 January 2015
Since you want to have clear title of the property after demise of your mother, let it be transferred and bequeathed through a will.
Rajendra K Goyal
(Expert) 08 January 2015
If immediately want the transfer in your favor, gift deed is preferred, if want to wait, ill is better.
Discuss your second method with local lawyer in view of stamp duty applicable in state on various stages.
Monish Shah
(Querist) 08 January 2015
Thank you all for your time and your reply. Really appreciate the efforts.
Dear N.J.S.Rajkumar Sir,
The stamp duty on settlement deed in the state of maharashtra is the same as that on conveyance of immovable property. So I think it might not work. Please enlighten me the provision, which I may have missed, where expense can be as less as you mentioned. I have reproduced below the clause relating to settlement :
"55. '. SETTLEMENT-
A- Instrument of -
including a deed of dower-
(i) where the settlement is
made for .a' religious or
charitable purpose.. some x amount
ii) in.any other case.
The same duty as is leviable on
a Conveyance under clause Cal,
(b),. ?r[or (c)ll, asthe case may
be, QfArticle 25, for a sum equal
to the amount settled or the'..
market value of the property
settled ;"
Dear Anirudh Sir,
Is there any way wherein I can create right in that part ??. I have reproduced below the clause relating to release. Can't I say my case falls in the words "or against specified property" :
"[52. RELEASE, that is to say, any
instrument (not being an instrument
as is provided by section 24) whereby
a person renounces a claim upon other
person or against any specified
property,-"
cannot i re read my case as " whereby a person renounces a claim against any specified property". I understand here there will be no need to have right in my mother property.
Request your opinion on above.
Also request other learned people to kindly share their opinion on my view above.
Thanks and Regards,
Kishor Mehta
(Expert) 08 January 2015
Sir,
[1] You may request you mother to prepare a WILL bequeathing the property to you, get the WILL registered.
[2] Request your mother to give you an Irrevocable Power of Attorney covering the property, inclusive of the right of selling the same, get the Power of Attorney adjudicated.
This, I believe, will be the solution of your query, with a minimal of expense.
Good Luck,
Kishor Mehta
Anirudh
(Expert) 08 January 2015
Dear Mr. Monish,
When you said that "(2)I become co-owner in the property and thereafter execute a release deed." you are quite aware that but for being a co-owner/co-sharer you cannot get a release deed from the other person.
You can definitely read: [52. RELEASE, that is to say, any instrument whereby
a person renounces a claim upon other
person or against any specified
property.
The point is, who can release and to whom it can be released. Item 52 covers those who have a right in a property and who releases such right. This will cover your mother.
But to "whom" such a release can be done is not covered here. That is covered under the law. According to law, a property can be released only to a person who already has an interest/share in the property in question. Obviously, in the property which belongs to your mother in her individual capacity, you do not have any share or interest. That is the crux.
I am not able to appreciate the purpose why you want the property to be in your name.
Guest
(Expert) 08 January 2015
Please Meet your Concerned Registrar Office to get a Confirmed Charges Details in regard to Settlement Deed.
B K Raghavendra Rao
(Expert) 08 January 2015
If you are looking at the cost point of view, it is advisable you ask your mother to execute an absolute Gift Deed without any conditions attached. If this is done, immediately the ownership is transferred into your name and your mother will no longer hold any right. In all other cases, huge expenses and time are involved. Title passes on to you perfectly in case of Gift Deed.
Dr J C Vashista
(Expert) 09 January 2015
I agree with expert Mr. B K Raghvendra Rao, get a Gift Deed or a Sale Deed registered in your favour so that title of the property is absolute in your name even during lifetime of your mother, if you are in such a hurry.
Donot get bothered for stamp duty to buy peace of your mind and enjoy absolute ownership/title of the property, who knows what shall happen later on.
T. Kalaiselvan, Advocate
(Expert) 12 January 2015
By thinking of effective cost management you may land up in unforeseen legal consequences and to come out of it, you may have to spend more than the original stamp duty for gift deed etc. So it is better to choose the straight path and be relaxed once things have been executed properly without any legal hassle in the future.
