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A fighter (NA)     17 April 2015

Heirship certificate - urgent help needed !!!

Dear Respected Experts,

I have entered into sale agreement for a flat with Mrs B who was married to A and A died a year before. They had purchased this property from a builder. This flat belongs to both A& B and it is mentioned in agreement with builder. They have 2 minor children X (17 yrs) & Y (11 yrs). In new agreement i.e. between me and Mrs B, I  did mention about Heriship certificate, which a seller has to obtain from court. After 3 months period, B has obtained Heirship certificate from respective court and produced it to me. This certificate mentions that there are 3 legal heirs of this property i.e. Ms B, X & Y. along with a special note which says:

" The person to whom this certificate is granted or their"representative, is required within six months from the date of this certificate, or within such further time as the Court may from time to time appoint, to render to the Court a true account of the said property and credits, showing the assets which have come to their hands and the manner in which they have been complied or disposed of. lf you fail to do this, will be liable to punishment under section 176 of the lndian Penal Code in accordance with section Vlll of Bombay Regulation Act of 1827.

My question is:

1. Can a seller, after obtaining this Hership certificate, sell this flat to me legally.

2. Is it required to obtain a separate permission from court for selling this flat, as both the legal heirs are minor.

I have already paid 70% payment to B and it is stuck up at the loan stage where bank has asked seller to get the court permission for selling. Please note sale deed is not yet done as I was waiting for loan disbursement.

I want to complete this deal but at the same time would like to be very clear in all legal paperwork. Need experts views on how should I move further with the deal.




 8 Replies

saravanan s (legal advisor)     17 April 2015

from your statement its clear that a had died intestate and in that case the property will devolve equally among the class i heirs- his mother, wife and children.since both the children are minors the mother of the children even though a natural guardian got to get the permission of the court to dispose the share of the minors and has to prove to the court that its been done in keeping the interests of the minor in mind

A fighter (NA)     17 April 2015

Just to add one more point - deceased A's mother is also no more now and hence only 3 legal heirs as per Hership Cert i.e. B, X & Y.

A fighter (NA)     19 April 2015

Hello All, I want to also inform that in my case the said flat was on both the name I.e. Deceased A and his wife B. Since this is jointly held property and after the death of A this flat can not be divided like a land, it can not be divided solely as per X & Y ' s share. Is it correct that in such a case where it's joint family asset and not solely on minor's name, a natural guardian need not to take court's permission to sell off this flat.

i wanted to refer to a judgement which was sent by seller's lawyer saying that since it is jointly held flat, minor's share can not be divided in absolute and no permission needed. There is a ruling by Bombay High Court Aurangabad Bench, stating that in such case Minority & Guardian acts is superseded, which says a natural guardian is like a KARTA of house and he or she can sell undivided share of minor without court permission. In fact the judgement says court permission is not required at all. 

please guide if this is applicable in this case.


A fighter (NA)     21 April 2015

Thanks Sarvananji for your response. With respect to my further addition, so you think my case fits into that or still seller needs to ask for courts permission. And if so How much time would it take to get the permission, can it be granted on fast track basis. Thanks

A fighter (NA)     24 April 2015

Hello All respected experts, I request you to please if you could respond to my query as the deal is stuck up due to this issue. Your responses will make me comfortable to deal further.

T. Kalaiselvan, Advocate (Advocate)     24 April 2015

@Querist:  Where ever the immovable property desirous of disposal by selling involves minor children interest, it is mandatory to obtain permission of court for such an act by the guardian of the minor children giving bonafide and justified reasons to do so.  The referred judgement do not fit your case, it is different from the query you have posted. Do not be misguided by listening to ill knowledge people's opinion.

A fighter (NA)     26 April 2015

Thank you Mr T Kalaiselvan.

adv.bharat @ PUNE (Lawyer)     05 August 2016

Nothing to be added since expert have all ready explain it in detail.

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