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Shash (Computer Engineer)     11 January 2010

Property registration problem

Hi Experts,

A few years ago, my mother and my younger brother purchased a property in Kolkata. Last year my mother passed away. Now the property is ready for delivery by the builder, however, few complications have arisen.

According to law, my mother's share should be distributed amongst her surviving children. Me and my brother are her only children; my father is no longer alive. I want to relinquish my share and want the entire property to be registered in my brother's name. I have conveyed that to the builder. They asked for three document -
1) Succession Certificate or Faraiznama (according to Islamic legal system)
2) Indemnity bond indemnifying the builder of any spurious claim in future
3) A Deed of Conveyance from me stating that I have no objection in transferring my share to my brother

All that was fine. I got the Faraiznama prepared. Both me and my brother are in US. So we got the Indemnity bond prepared by our lawyer in India and got it mailed to us in US. Then both me and my brother went to the Indian Consulate in New York and signed the Indemnity bond in front of the Consulate officer and also got it certified by the officer. When we mailed it to the lawyer representing the builder, her response was that "a document cannot be executed on the stamp paper of a state/country where one is not present at the time of execution." Is her contention correct? If so, how can I get an Indemnity bond prepared and still meet the legal requirements? Is there a possibility that the other party can be persuaded to accept the Indemnity bond we have prepared?

Also, it is important to note that it would be extremely difficult for my brother to travel to India to take care of the matter. If it were not so, we would have gone to India and taken care of the matter in a few weeks. The problem is, I can go but he cannot.

The builder's lawyer says that I also need to personally sign and execute a Deed of Conveyance, recording the fact that I am surrendering and releasing the right to the apartment. However, the problem is that she insists that both me and my brother have to be personally present in India to undergo the formality since, according to her, "this is a peculiar situation where you will be relinquishing your rights in favor of your brother. Your joint presence has become compulsory." She says that even a Power of Attorney document where my brother nominates me to handle proceedings on his behalf is not sufficient. I find this extremely ridiculous.

I would like your kind opinion on this matter. Is my case all that unique? I would have thought that dozens if not hundreds of people face problem similar to mine. Am I being taken for a ride? What are my options?

Kind regards


 1 Replies

Adv. K.S.A.Narasimha Rao (legalquestadvisor@gmail.com )     18 January 2010

Dear Shash,

There is no problem if you execute the Indemnity bond on an Indian Stamp Paper in US.

Basically Stamp paper is used for payment of Stamp Duty of concern state.

There is a need to execute a Release Deed in favour of your Brother and get the same is endorsment as per section 42 in the concerned registration office.

For execution of such release deed you need not come to India, you both can execute the said document at US and any representative can get endorsement of said document for payment of Stamp Duty at Kolkata.

if you have any querries, mail to me ksanrao786@gmail.com

S.A.Narasimha Rao Karri


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