Chitra (Engineer) 22 February 2010

Hindu Succession

Hi All,

There is a property owned by my brother who has expired leaving behind his widow and a minor son. As per Hindu Succession law, it is understood that the property now has 3 legal heirs naming, the deceased's (my brother) widow, his minor son and his mother.

Though this property was acquired by my brother however since the money was lent by the deceased's mother hence now after his death, my mother wants the entire property to be transferred on her name.

My brother's wife (sister in law) is in complete harmony and understands this fact that this property though acquired by her husband but was financed by her mother in law and hence willing to transfer the property on my mother's name.

After consulting with few lawyers we learnt that though there may be 3 legal heirs to this property, my mom, my sister-in-law and his son. Though my sister-in-law understands the situation and is willing to transfer her share however the share that the minor son cannot be transferred on my mother's name. So the only solution available was to execute a "Relinquishment Deed" so that my sister in law , releases her part of share to my mother. Therefore the property will be registered on my mother's and my brother's minor son's name. My mother would hold 2/3rd share whereas my brother's son would hold 1/3rd share.

However when we approached Sub-Registrar, he first challenged the "succession act" by claiming that my mother is not a legal heir of this property and later suggested that relinquishment deed is incorrect document in this case and that we should either execute a Sale Deed or a Gift Deed . However in the situation when the minor son of my brother holds 1/3rd share in the property, how can my sister-in-law execute sale/gift deed on my mother's name trasnferring the entire property?

Can my bhabhi (sister-in-law) being the legal guardian of her minor son, on his behalf execute the sale/gift deed? Kindly note that we would like to avoid the sale deed option also as that would involve huge money as per the price of property, instead if we go for gift deed, is it viable first of all and if yes how and what way should it be executed?

Your earliest response to this query will be highly appreciated as we are highly confused because of the lawyer's an registrar's different opinion's and want to settle this matter asap.

Thanks in advance

Chitra

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5 Replies

Suchitra. S (Advocate) 22 February 2010

I think the lawyer's advise is correct one. Your brother's wife cannot execute sale/ gift on behalf of her son to your mother. And as opposed to Registrar's opinion, your mother is a legl heir of first class under Indian Succession Act.

Chitra (Engineer) 22 February 2010

Thanks Suchitra that answers my query however what is the alternate or solution to this. As you may have understood the situation now, my brother's wife is completely agreed and willing to transfer the property on my mother's name. So which way can this be executed?

After consulting with few lawyers, we zeroed down on "Relinquishment Deed' which sounded both safe and good option to us because that way my mother would be owner of 2/3rd share in the property and my brother's minor son holding 1/3rd wouldnt be a problem because in any case, had my brother been alive, my mother would have given him his share.

But as per registrar, relinquishment deed is not the correct document and he clearly suggested to opt for either sale/gift deed. Now in such a situation what should we do when the registrar being aware of the fact that there is a minor son involved is making such a suggestion?

My lawyer is still insisting that what the registrar told abt my mother not being legal heir is incorrect and that his suggestion of sale/gift deed is also incorrect. I totally agree with my lawyer too but what is the ultimate solution to this case? We dont even have a dispute of any sort here and harmoniously wish to trasnfer the property on my mother's name.

Chitra (Engineer) 22 February 2010

Can someone please treat this as a matter of urgency and advise? We are all in a confused state at the moment as we understand our lawyer is correct and what the registrar suggested is incorrect but how do we convince the registrar because at the end of the day its him who has to register our documents. I dont understand why a relinquishment deed is not valid in our case as my brother's wife is just trasnferring her share and not touching the minor's share in this case.

V. VASUDEVAN (LEGAL COUNSEL) 22 February 2010

Is the property a Flat in a Society. In such case, there is no need for registration of any document. The Society

should be able to name transfer the Flat in the name of the mother of the deceased, jointly with the name of the minor (represented through the mother and natural guardian, based on an application, no objection and indemnity from all the legal heirs.

Vasudevan

Anil Agrawal (Retired) 22 February 2010

"however since the money was lent by the deceased's mother". Does it mean anything? What proof exists and how does it matter?

Without valid nomination, society is not empowered to transfer the share in anybody's name. Alternatively, it will ask for legal title to be obtained from a court of law. NOC and Indemnity bond won't do.