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Mahendra Thawani   16 April 2018

Legal heirship

Hello, my brother passed away in mumbai last July. I negotiated with his wife to relinquish her rights for a certain amount of money to be paid by me. And agreed with my other four siblings to divide the balance of property 5 ways (20%) each, which was to be achieved via family settlement with all six signers (5 siblings + widow). Now one sibling is demanding 40% of balance share after payoff to widow, else will not sign the settlement. She has all original documents of the property. I propose to now sign a relinquishment deed with the widow (my sister-in-law) and pay her the agreed share, and register the deed. Next I intend to apply to the courts for sole legal heirship for my sister-in-law, and since I will have her irrevocable relinquish deed, her heirship rights to the property will be transferred to me. And next, I plan to distribute the estate equally among the siblings. Is there a problem with this approach where I can get above done only on basis of photocopies of share certificates, affidavits from other siblings, declaration that one sibling is refusing to part with documents only to frustrate fair division of,property, etc. Are original documents of property required for registration and for legal heirship? Read more at: https://www.lawyersclubindia.com/my_scrap.asp?member_id=422243


 7 Replies

Kumar Doab (FIN)     16 April 2018

Who is owner of the said property?

Your deceased brother or say your parents?

Which personal law applies in your case?

Or are all involved Hindu?

Was mother of deceased alive as on date of his death?

Has deceased left any son and daughter also?

From language in query (mention of shares) it is felt that said property is a building in some society?

Have the deceased i.e. your brother left any valid WILL?

The property is in which state?

Do you have copy of society bye laws, Model Bye laws on basis of which society bye laws are framed, applicable Act in the state?

The clear process if narrated for such matters in  above?


Kumar Doab (FIN)     16 April 2018


The wife of deceased Co-sharer is a legal heir of her husband.

So she gets share from estate/property left indisposed by her husband.

Death certificate, legal heir certificate/affidavit (per local procedure/precedence’s/rules)….affidavit/indemnity/NOC etc are basic requirements……

By the lady’s entry in records (mutations) she attains rights equal to that of owner by inheritance…

Once IT succeeds she certainly has a right to act like owner (per provisions of applicable local rules)…………….

Simultaneously all other legal heirs get share by inheritance e.g; Mother, sons,daughters..!    

She can dispose her share (per applicable rules/codes) in anyone’s favor by any valid/registered deed e.g; relinquishment/release/transfer/gift/sale etc.


If said property is of deceased brother:

Then by which law/rule you and other siblings are expecting a share?

If you are all Hindu; and deceased brother has not left and sons, daughters and his mother was also not alive as on date of his death; then his wife is sole surviving ClassI legal heir and hence full owner of said property..

On what grounds Family settlement is being contemplated?

On what grounds do you expect to become her sole legal heir?

She can otherwise dispose in your favor by say; other than relinquishment deed e.g; sale/gift!

Isn’t IT?

P. Venu (Advocate)     16 April 2018

How the siblings of the deceased come into picture? The widow (your sister-in-law) and the mother (if alive) and the children (if any) alone are the legal heirs to the deceased, in terms of the provisions of the Hindu Succession Act.

Mahendra Thawani   16 April 2018

We are Hindus. The property is in Mumbai in a co-operative housing society. We were four sisters, two brother brother expired this July). My father expired in the year 2000, and my mother expired in 2007, and my brother expired in 2017. When my father expired in 2000 he left a will with myself as half owner, and my mother as owner of other half, with a provision the mothers half passes on to my brother. All the siblings signed a family agreement in 2000 indicating that there was no need to probate the will and were agreeable to my fathers unprobated will. My father also had earlier nominate us two brothers with equal shares in the society. The society, in 2000, was provided the will copy, the siblings family agreement and the society transferred the shares of the society in mine (50%) and my mothers name (50%), and subsequently replaced my mothers name with that of my brother on my mothers written request. My brother does not have any children. He leaves behind his wife. He did not leave behind a will. My brothers estate consists of 1/2 flat, approx. 40 lacs in bank, and a small travel agency whose partners are my brother and his wife. The parnership is the owner of the small shop. Since I am a co-owner in the flat, my sister-in-law can relinquish the flat to me at a low stamp duty rate. How much is the stamp duty in such a case? My sister-in-law has agreed to relinquish the estate to me for a sum of money. I would like to execute the relinquish deed first! Is that possible without the legal heir certificate. Next, with a Power of attorney from my sister-in-law, I wish to apply for sole heir certificate. Since the relinquish deed would have been executed first, the entire estate would come in my name. I would then distribute equal shares of the estate to my sisters after less amount paid to my sister-in-law. The question is, can I execute a release deed prior to heirship? I prefer it in this order as asafeguard against any change of mind once the legal heirship certificate is obtained. Do I need the original property papers for registering the relinquish deed. And do I need original property papers for the legal heirship application. I have copies of the document, and my three sisters will sign affidavits testifying to the documents they signed in 2000, and as to the genuiness of the will. The only sister who will not sign is the one holding the documents and demanding 40 % of the share.

Mahendra Thawani   16 April 2018

The 2000 settlement agreement was in stamp paper but not registered.

Mahendra Thawani   16 April 2018

The 2000 settlement agreement was in stamp paper but not registered.

Krishnapur Ananth Nagamani (Advocate)     20 April 2018

From facts narrated by you, I conclude that your father left only a life estate in favour of your mother for half ownership of the property and made your brother full and absolute owner of the subject property.

Therefore on the intestate death of your brother, his half share passes absolutely to his wife who is his only class 1 legal heir. She has absolute rights to alienate the half share she inherited on death of her husband (your brother). She can relinquish the share, but you must understand relinquishment in legal parlance means no consideration, ie no money or other asset transfer in lieu of the relinquishment. If any money is exchanged, it will be liable to stamp duty as if a sale has taken place. Prevalent stamp duty and registration fee in the state is applicable in such a case.

A relinquishment always returns to the common kitty. Since only you and your sister-in-law are the co-owners of the property, her relinquishment deed will automatically constitute you as the sole owner of the property and no further sole heir documentation is necessary.

It is your sole decision to divide the property in equal shares with your sisters as suggested by you though there is no requirement under the law that you give them a share in view of the admitted genuineness of the will. Probate can be initiated at any point of time after the death of the testator and you can proceed with probate proceedings for safeguarding your right. The documents signed by your sisters in that behalf stands in your favor in these proceedings.

Original property papers are not necessary for relinquishment deed. Legal heirship certificate is not necessary either. The will is sufficient to prove your title to half share and relinquishment deed is sufficient to prove your title to the other half.

You can initiate proceedings against the sister who is holding the original papers and obstructing your legal rights.



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