relinquishment deed


 

Hello Sir/Madam,

my father expired few months back, i have two sisters both are adult and unmarried, now we wanted to transfer all the property which is in my fathers name to my mothers name , as we being the legal Heirs, all of us are ready to sign a Relinquishment Deed or any required documents,

my father had property in rajasthan in 2-3 different cities, and also have property in 2 different states
so only one relinquishment deed is enough or we need to created different deed for diffenet properties and the stamp paper should be purchased from that state where we hold the property,

Also should the relinquishment deed be regestered and while regestering all the members in my family should be available while regestering, to sign the deed

for this can you guide me will the Relinquishment Deed be sufficient or some more legal documents are required
and on what amount of stamp paper the deed should be made, ( example:Rs500 or Rs 2000)

Can Someone guide me with the right path

 
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Advocate

If a property has joint owners, for example Hindu joint family property, one joint owner may give up his/her rights over the property in favour of another. This is referred to as a release/relinquishment. A release or relinquishment is not referred to in the Transfer of Property Act. It is a term that has arisen out of usage. It is a transaction that is similar to a transfer and amounts to a transfer. : A release of rights in immovable property should be by a written deed and registered. The registration takes place in the office of the Registrar within whose jurisdiction [the area over which the Registrar exercises his/her authority] the property is situated.

 

Procedure

Procedure : Stamp duty must be paid as per the laws of your state, depending on the value of the property. [Each state has a law which prescribes the value of the stamp paper required for a particular deal/transaction. The state government fixes the market value of properties in different areas depending on the location and, demand etc. Stamp duty cannot be calculated for a value lesser than this fixed value. There may be separate stamp duties prescribed for a release in favour of family members and a release in favour of others.


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ha21@rediffmail.com Mumbai : 9820174108

1.  The property  (as of today) stands registered in the records, in the name of the deceased person (father).
 

2.  The property (as of today)  DOES NOT STAND IN THE NAME OF the legal heir's.
 

3.  Hence the  "legal heir's" cannot execute any  "relinquishment  deed" in favour of anybody,  which could otherwise be termed as  "misrepresentation"


4.  A  "relinquishment deed" can be executed  "O N L Y"   by the registered   "ALIVE"   owner and nobody else, including the heir apparent. 


5.  The property of the deceased (father) has to be first transferred in the names of the legal heir, as per his registered "Will" (if available),  else a procedure (or thru arbritration) registered in the Court will have to be followed.

 

ONCE the property is registered in the name of the legal heir's,  only then the "relinquishment"  procedures prescribed by Adv. A.V.Vishal (as above) can be followed.
 

Keep Smiling .... Hemant Agarwal
 


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Advocate

I agree with Hemant ji. Reliquishment deed can only be executed by the owner of the proerty.

 
Reply   
 
Advocate

Dear Hemanth & Suchitra

I differ on the view expressed by you. Relinquishment should not be construed in strict sense viz. only if there is ownership rights relinquishment can be executed, even if there is an interest in the subject matter then relinquishment can be executed. In the instant case the querist has stated that they are all majors and the LR's of the deceased who is none other than their father. Since the deceased died intestate based on the succession law governing the deceased all the LR's can apply to the court to succeed the property based on the interest created in the property on death of the owner and not on ownership rights. 


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Advocate

Yes Sir, Thanks and I agree with you on this. But still , in this circumstance , is there any need to execute a reliqueshment deed by the LRs ?

 
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Advocate

It is only for the purpose to safeguard the interest of the mother that the deed is being executed, else, under other circumstances the LR's may pose problems in future and dispute.

 
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Lawyer-cum-detective

I endorse legal opinion of Vishalji but mother should also safeguard future of her children through a registered will after tranfer of properties in her name.

 
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ha21@rediffmail.com Mumbai : 9820174108

1.  "Creation of Interest" is not equal to "rights of owner".
 

2.   Creatiion of Interest in the property, is always sub-judice issues, till  a RIGHT has been established.
 

3.  A Right can be established, ONLY & ONLY when a rght has been transferred on records  and "Creation of Interest"  is a fiction for the projected purposes.
 

4.  Between  "creation of Interest"  and  "execution rights",  there may crop up other vested interests or other successors, thus diluting the present successors interest in property.
 

5.  Hence, ONLY when the rights of a property is absolutely transferred, it can be established and executed for purposes of  Sale, Reliquishment, lease etc...
 

6.  Based on  "creation of interest",  a right cannot be established for purpose of  sale, reliquishment or lease or etc...
 

7.  A non-successor or a non-heir, can also claim "interest" in the property.  AND this cannot be settled by the instant successor and if it so happens, the instant successors cannot relinquish anything, which is under dispute or which is not duly transferred to them (absolute right over property)
 

8.  To relinquish anything, a person should have absolute right (and not a legal fiction right) over the property.  One cannot relinquish anything that does not belong to him.
 

9.  Creation of Interest is a conditional interest.  Absolute right is not a conditional interest.   Creation of Interest is disputable, whereas  "absolute right" is not.
 

10.  Under the HSAct, the son is the legal heir and by default creates  "an absolute Interest" on his parents property.  BUT, But, but,  "SUBJECT TO", the wishes of parents, who MAY NOT bequeat him anything, thereby nully'fiing his  absolute legal interest in his parents property.
 

11.  Here it will be impossible for the son (as above), to state that he has "created an interest" in the parents property (deceased or otherwise)  and that he is relinqishing his heirical rights on the property to any other person.

 

Above meant only for understanding purposes and not otherwise.

 

Keep Smiling .... Hemant Agarwal
 


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Advocate

Your reply has the answer refer:

10.  Under the HSAct, the son is the legal heir and by default creates  "an absolute Interest" on his parents property.  BUT, But, but,  "SUBJECT TO", the wishes of parents, who MAY NOT bequeat him anything, thereby nully'fiing his  absolute legal interest in his parents property.
 

As the property belongs to the deceased father, the son is also a legal heir under Class I and since it is an intestate property, the sons and daughters including the mother has eaqual right in the property which cannot be denied even by the mother unless the deceased had willed the property in the name of his wife. What ever terminology you used be it deemed interest, fictional interest, absolute interest etc... the fact is the sons or daughters can claim partition of the property in future, Hence if a relinquishment deed is executed than there will not arise any problem to the mother and after her demise the property will devolve upon the children automatically.

 


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