Mutation of property or sale without mutation
Prem Dhawan
(Querist) 08 June 2020
This query is : Resolved
Husband has died and the wife wants to sell a very small DDA property in Delhi.
Is mutation of property necessary before selling?
If yes, please advise on the approximate cost and time.
What will be the lawyer's fee in case a lawyer is needed?
Can property be "sold" via a registered gift deed or registered Will or registered Power of Attorney without doing/needing Mutation?
Is there a difference for buyer in comparison to the Sale deed?
Can the owner execute more than one gift deed, Will and/or Power of Attorney for the same property?
For example initially executed in favour of one buyer, and then executed a new document in favour of another buyer.
P. Venu
(Expert) 08 June 2020
Who are the legal heirs to the late husband? It need not be the case that wife is the lone legal heir.
Raj Kumar Makkad
(Expert) 08 June 2020
Entry of mutation is not a big issue. You personally can get it done by approaching the office of MCD. A prescribed application is required to be filled and to be deposited with nominal fee. This can be done even online. After due verification, the mutation shall be got entered in the name of the legal heirs of the deceased.
It is always good to get the mutation entered prior to the sell which is benefit for the buyer as well as for sellter.
Gift-deed/will/GPA and sale are all different documents. This is a very big discussion. You cannot make gift twice for the same property. Sale-deed is the best option if the buyer is outsider of your family.
K Rajasekharan
(Expert) 08 June 2020
Mutation is necessary for a legal heir to sell the property of the deceased person bestowed on him by the operation of law of succession.
The ownership of the property in question vests on the legal heir on the day of death of the deceased itself but to record the new owner’s name in the land records, it is necessary to perform the process of mutation.
Mutation, as already said, will be done by the official in charge on conducting a due enquiry relating to legal heirs, once an application is filed by the legal heir.
In fact, mutation is the last phase of the three part event of land sale consisting of execution of sale deed, registration of it and mutation. In this case, the legal heir has stepped into the shoes of the deceased in the matter of ownership and title of the land, the last part of the three part event – the mutation - alone is enough.
Mutation does not create any substantive right but it is only a mechanism to collect the land tax by the government.
Prem Dhawan
(Querist) 08 June 2020
Thanks for the replies so far.
Additional info:
Wife is the only legal heir and is 67 years old. There is no child.
The property is a very small residential plot. As I know, Mutation is actually must for agricultural land and optional/recommended for residential.
Due to the current pandemic there is less certainty of life (legal heir is 67 years old) and government procedures (mutation, sale deed, ...) will be either slow or on hold or not possible. That's why the question: is it a good idea to execute (quickly) a Gift-deed/Will/GPA in favour of the buyer if buyer is safe? For example, after executing a Gift-deed/Will/GPA in favour of one buyer and taking money from the buyer, can the seller execute another Gift-deed/Will/GPA in favour of another person? Maybe the latest document (Gift-deed/Will/GPA in favour of second buyer) might take precedence. If yes, first buyer will lose.
FYI, (first) buyer is the nephew of deceased's wife (decease's wife's sister's son = son of the sister of deceased's wife) or nephew's wife.
Are Gift deed/Will/GPA appropriate documents in place of sale deed? Mutation might be necessary for Sale deed but maybe not for Gift deed/Will/GPA therefore Gift deed/Will/GPA may go faster.
Thank you.
Raj Kumar Makkad
(Expert) 08 June 2020
You have misconception that the mutation is entered only in case of the agricultural land. Change of the ownership is the outcome of such mutation qua all types of the properties though the authority for the urban area is other than the revenue land. MCD is the proper authority.
You can definitely gift the said property in favour of the person you mentioned thrice and after gift-deed registration, the entire rights in the said property shall vest in favour of the donee and thereafter he shall be free to deal with the said propert as per his free will and whims but in case of will, he can do nothing during your life time and similarly he cannot give GPA to third person during your life timeand it shall automatically get cancelled on the demise of either of the parties.
Rajendra K Goyal
(Expert) 08 June 2020
You said:
Husband has died and the wife wants to sell a very small DDA property in Delhi. Is mutation of property necessary before selling?
Reply:
In record, she is not owner till property mutated in her and also in the name of all legal heirs.
You said:
If yes, please advise on the approximate cost and time. What will be the lawyer's fee in case a lawyer is needed?
Reply:
You can do it yourself, attach death certificate and particulars of legal heirs. You can take help of some lawyer / property dealer. Settle service charges with them before proceeding.
Rajendra K Goyal
(Expert) 08 June 2020
You said:
Can property be "sold" via a registered gift deed or registered Will or registered Power of Attorney without doing/needing Mutation?
Reply:
Property can be sold by sale deed. Gift deed can not be revoked and is not a sale deed. Power of attorney / will can be changed at any time. All these can be done without mutation but having risk.
You said:
Is there a difference for buyer in comparison to the Sale deed?
Reply:
If sale deed is possible, Sale deed is always better, can not be replaced by will / power of attorney.
Rajendra K Goyal
(Expert) 08 June 2020
You said:
Can the owner execute more than one gift deed, Will and/or Power of Attorney for the same property? For example initially executed in favour of one buyer, and then executed a new document in favour of another buyer.
Reply:
More than one gift deed for the same property is fraud / illegal. First would prevail if done more than once. Will and POA can be changed.
You said:
As I know, Mutation is actually must for agricultural land and optional/recommended for residential. Due to the current pandemic there is less certainty of life (legal heir is 67 years old) and government procedures (mutation, sale deed, ...) will be either slow or on hold or not possible.
Reply:
Your information is away from facts.
Rajendra K Goyal
(Expert) 08 June 2020
You said:
is it a good idea to execute (quickly) a Gift-deed/Will/GPA in favour of the buyer if buyer is safe? For example, after executing a Gift-deed/Will/GPA in favour of one buyer and taking money from the buyer, can the seller execute another Gift-deed/Will/GPA in favour of another person?
Reply:
Gift deed once done can not be changed / reversed. Will / GPA can be changed. Sale deed is better.
You said:
Maybe the latest document (Giftdeed/Will/GPA in favour of second buyer) might take precedence. If yes, first buyer will lose FYI, (first) buyer is the nephew of deceased's wife (decease's wife's sister's son = son of the sister of deceased's wife) or nephew's wife. Are Gift deed/Will/GPA appropriate documents in place of sale deed? Mutation might be necessary for Sale deed but maybe not for Gift deed/Will/GPA therefore Gift deed/Will/GPA may go faster.
Reply:
Sale deed is better option. Gift deed can be done if there is saving in stamp fee.
Prem Dhawan
(Querist) 08 June 2020
Thank you once again.
Can a sale deed for this case (DDA residential plot) be executed by the wife (legal heir) without doing mutation of the property?
If yes, after the execution of sale deed, can the buyer complete the mutation directly in his name (from deceased's name) without having to do it twice: firstly from deceased to his wife and then from the wife to the buyer/nephew?
Secondly, do I understand well that the wife (legal heir) can register only one gift deed for a property. Will any subsequent gift deed/Will/GPA for the same property but in favour of another person/buyer be automatically null and void? If yes, then this will give surety to the buyer that his purchase is secure although executed via gift deed instead of sale deed.
Can the registered gift deed be executed in favour of nephew's wife or only in favour of nephew?
P. Venu
(Expert) 08 June 2020
As you are the only legal heir, the property is already vested with you; you are the absolute owner of the property. Your title is perfect even in the absence of mutation, which is only meant for fiscal purposes and is not absolute as to title.
You may convey the property, at your discretion, through a registered deed.
Dr J C Vashista
(Expert) 09 June 2020
Mutation of a property (other than agricultural land) is not compulsory and can be sold by the titleholder / owner. Mutation do not confer any title on the property.
Lawyer's fees differs from person to person, case to case and client to client, there is no fixed formula. However, as advised by experts, which I agree, you can get mutation sanctioned, if required.
What is the document conferring title of subject property in favour of the vendor, you did not mention ? If she (legal representative of deceased) is absolute owner and in possession she can get a sale / gift deed registered without mutation.
Second part of facts in the query are subjective, which can deliberated with a local lawyer "one-to-one".
Rajendra K Goyal
(Expert) 09 June 2020
You said:
Can a sale deed for this case (DDA residential plot) be executed by the wife (legal heir) without doing mutation of the property?
Reply:
Yes, it can be done.
You said:
If yes, after the execution of sale deed, can the buyer complete the mutation directly in his name (from deceased's name) without having to do it twice: firstly from deceased to his wife and then from the wife to the buyer/nephew?
Reply:
Since the seller is not in record, mutation of property sold by him would not be sanctioned in buyers name directly. Property should be mutated in the name of seller first. Since it is DDA flat, approach DDA to register name of legal heirs of the property as the owner has died. Chain would be completed.
Rajendra K Goyal
(Expert) 09 June 2020
You said:
Secondly, do I understand well that the wife (legal heir) can register only one gift deed for a property. Will any subsequent gift deed/Will/GPA for the same property but in favour of another person/buyer be automatically null and void?
Reply:
After gift deed, owner does not remain owner, any subsequent gift / Will/GPA / Sale deed by seller is illegal.
You said:
If yes, then this will give surety to the buyer that his purchase is secure although executed via gift deed instead of sale deed. Can the registered gift deed be executed in favour of nephew's wife or only in favour of nephew?
Reply:
If property taken by sale deed / gift deed the person is secured provided no prior sale / gift of the property has been done.
Gift deed is registered, it can be in favor of any person. In some states no stamp fee is taken on gift to specified near relatives.
Raj Kumar Makkad
(Expert) 09 June 2020
Gift is your sole discreton. You can get it registered in the name of your newphew or his wife. There is no difference legally.
Raj Kumar Makkad
(Expert) 09 June 2020
Gift-deed also implies the cessation of all and every right of the donor in the gifted property.
Prem Dhawan
(Querist) 10 June 2020
Thank you once again.
After the execution of sale deed (without doing mutation from deceased to the sole legal heir), can the buyer complete the mutation directly in his name (from deceased's name) without having to do it twice: firstly from deceased to his wife and then from the wife to the buyer/nephew?
Dr J C Vashista
(Expert) 10 June 2020
Yes, it can be sanctioned in favour of vendee (purchaser) on the basis of registered "Sale Deed".
Prem Dhawan
(Querist) 11 June 2020
Thanks a lot for proving clarity.
Rajendra K Goyal
(Expert) 13 June 2020
Humbly and respectfully differ, Mutation would first be sanctioned in favor of the legal heirs and afterwards in favor of the purchaser from legal heir.
Rajendra K Goyal
(Expert) 13 June 2020
Humbly and respectfully differ, Mutation would first be sanctioned in favor of the legal heirs and afterwards in favor of the purchaser from legal heir.
Raj Kumar Makkad
(Expert) 13 June 2020
Mr. Goyal
There is no ocassion for difference as we both are opining in similar way.
Rajendra K Goyal
(Expert) 13 June 2020
Expert Raj Kumar makkad ji, no difference on advice from you.
Prem Dhawan
(Querist) 16 June 2020
With due respect, it seems that there is a difference of opinion if the buyer can do the mutation directly in his/her name (from deceased's name) without having to do it twice: firstly from deceased to his wife and then from the wife to the buyer/nephew.
Rajendra K Goyal
(Expert) 16 June 2020
Record in respect of chain of mutation would complete after mutation in favor of widow and in the name of purchaser afterwards.
Rajendra K Goyal
(Expert) 16 June 2020
Record in respect of chain of mutation would complete after mutation in favor of widow and in the name of purchaser afterwards.
Raj Kumar Makkad
(Expert) 16 June 2020
There is no difference of opinion. First of aall, you need mutation in your name and then only buyer shall get the same changed in his name. Procedure is procedure and you have no other option but to follow it. Why are afraiding to get the mutation entered in your name prior to sale?
Raj Kumar Makkad
(Expert) 16 June 2020
Even you have not made up your miind finally. Sometimes you cometo gift and other time on sale. It is your desire how to deal with it but if you intend to gift the property then why the donee, who otherwise is very near relative of you, shall not ruh to the office of MCD and shall get the due entry of the change of ownership in your name first and then on the basis of the said registered gift-deed, ensure the change in his name?
Rajendra K Goyal
(Expert) 17 June 2020
In record all occasions of transfers / gifts / inheritance / mortgage etc. need to be shown through mutation to complete chain.
Prem Dhawan
(Querist) 18 June 2020
Dr J.C. Vashista has advised that mutation can be done directly from the deceased to the buyer after sale.
This will reduce the steps for the widow from two (mutation and sale deed) to one (sale deed only) and total steps from three (mutation, sale deed, mutation) to two (sale deed, mutation). Consequently a faster process!
Full chain of sale/ownership is needed for mutation but it can also be taken care of if mutation is directly done from the deceased (through legal succession to the widow but without mutation) to the buyer.
Rajendra K Goyal
(Expert) 18 June 2020
Advices at this site have limitation. All documents are not referred. Depend on limited information provided by the author. Sometime advices are based on one state rules while problem is of some other state.
Advises may differ, you may proceed which you think more appropriate after discussion from your lawyer.
