Dispute regarding type of agreement

I am not a lawyer or a person with legal background and yet I feel commenting out of curiosity which legal expert may like to comment.  I guess the brother who has worked out the quantum of share for self,  his brother and sisters is out of court and wants to retain his lion's share of the ancestral property and release the ownership on the balance share in favour of his brother and sisters.  But there are some properties that can't be demarcated, so share is worked out in cash, particularly for sisters.  The question is who will do the demarcation to the satisfaction of all?   Many times, a good solution is that the property in question is given to the builder for development under Development Agreement with General Power of Attorney by all brothers and sisters and the builder gives flat as consideration to each brother and the sisters share is given in the form of money.  Builder can get additional FSI under changed rules from the authorities.   That is the job of architect.   But there is a possibility that the brother who holds the ownership card will expect a larger flat and the other brother may get a smaller flat.    Other flats developed on the land property are sold to private purchasers by the builder as his business profit.  But in that case the commercial space is sold for huge profit  first vide Booking Agreement depending on the location and   residential flats are constructed above it.   The brothers can keep a 10% share of cash generated in the commercial space if that is a clause in the Development Agreement.  This way it is a win win situation for  all parties as married sisters have to reside in their sasural and money should be fine with them.   Alternately an unmarried sister can stay with the brother.                            shrikantbadve1@gmail.com  

Response in seriatim: 

If your brother does not wish his wife to be a witness, thats perfectly alright. There are other members in the family and extended family who can be witnesses. Please ensure that they are identifiable people. Have their complete name and address / aadhaar on the witnessing document.

 A sale deed is always a better proposition than a Release deed. However, a Sale can be done only by the owner of the property. In your case there are joint owners. and the sale cannot be done by one joint owner to the other joint owner.

The third point can be answered only if there is clarity on the second point.

The suggestion made by Shrikant Badve is a good one and can be looked into.

A  constructed residential house is depreciated at the rate of 5% p.a. So, the value of construction, which was done atleast 20 years ago has zero value as of now. 

You may draw up a Family Arrangement  agreement and put in all the points about individual share of each of the owners. Please register the family agreement and ensure that the shares of each of the owner  are registered in the Revenue / Land records.

Hello...My suggestion has some inbuilt issues.  When a Development Agreement is signed with the builder, at the beginning everything looks rosy but many times there could be several hidden issues, on the quality of construction material that is used.  This is because the builder's focus is on the cream of the property i.e. commercial space for which he may use better construction material than the residential flats.  Hence specifications of the construction material to be used for flats must be clearly mentioned in the Development Agreement and the brothers should regularly check that it is so as per the agreement.  The area of residential flat that he is going to give to each brother must be clearly stated in the Development Agreement including the floor, frontage (entry and exit , parking space, sanitation, windows etc).   Else he may create problem at the time of  handing over the possession.    Now if he gives less area then he has to refund the market value of the area not given and if he gives extra area then that has to be free and the builder will not claim any money from either of the brothers.  Sometimes, this extra area becomes the kabab ki haddi !  (meaning the unscrupulous builder  may ask for money from the brothers in lieu of extra area, which may actually  be the "cost of construction of their flats")  What I mean is that area should be identical to both the brothers.   A point that is likely to be ignored is when the old building / construction is handed over to the builder for development, then the builder has to provide ALTERNATE RESIDENCE prior to its demolition at his own cost till the written possession of their flat is not given in their property including the cost on utilities like electricity and water.    [with all diagrams on electrical wiring, water pipes,  terrace rights, demarcation of common area with parking, water storage tanks for domestic use, access to common area, etc used in the new building ]    shrikantbadve!@gmail.com   

I have come to know that between siblings and joint owners, there is no sale deed and only relinquishment deed. The problem here is he can challenge the deed once we pay him. I am completely confused as to what should I do. 

The co-ownership right can be released in favour of another co-owner and it need not be by a sale deed.

Islamic Law follows the principle of ‘nemo est haeres viventis’ i.e. nobody can become an heir to a living person. This means under Muslim law, the legal right to inheritance of property arises only upon the death of the deceased. As such it is impossible that the wife and children of the brother could have any rights over the property which he had relinquished through a release deed. In my understanding, any attempts as to make the agreement stronger, would be infructuous.

 

Please follow the route of family agreement backed by Release deed. Get both of it registered. 

There's no way of anyone challenging it thereafter.  Catasnimbano@gmail.com