SUMANTBAWARI (Software Engg) 11 January 2014

Transfer of immovable property mumbai

Hi,

My mother owns a flat in a Co-Op HSG in Mumbai. She has written a will in which she stated that after her passing I will be the sole beneficiary of that apartment. Also I have been added as a nominee for this flat. However I have a frail relation with my siblings and I fear that after her death they will come to seek their share as legal heirs in the property so my questions are:

1) is it compulsory to get a probate for this will if the will is not challenged or is a probate compulsory for immovable properties in Mumbai?
2) Can a gift deed or settlement deed be used to transfer the flat instead of a Will?
3) If yes, is there a way to maintain life interest of my mother in this property as long as she is alive?

Regards,

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4 Replies

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 12 January 2014

1. Will be effective only after death. Will (registered or not) is challengable by other legal heirs.
2. Will if challenged, creates endless problems.
3. IF Will is in dispute, THEN it is necessary to Probate it at the State HC testamentary dept.
4. Nomination is effective only after death. Can easily be challenged by putting claim on the property, by other legal heirs.
5. Safest way is to execute a duly stamped and registered Gift Deed by the property owner. Once gifted and property transferred, then challenge of the same is not posible by other legal heirs.
6. The Gift receiver, may take care of the Gift maker, for life-long sustance, in various voluntary ways.

Keep Smiling .... Hemant Agarwal
https://hemantagarwal21.blogspot.in/?view=sidebar

SUMANTBAWARI (Software Engg) 13 January 2014

Hi Hemant,

Thank you for providing your reply to my post. In a recent ruling by the supreme court of India (see link) it seems that a will has to be probated if the property is in Mumbai. Could you advise if my understanding of this ruling is accurate or if there are exceptions to this.

https://www.lawyersclubindia.com/judiciary/Succession-Act-1925-Secs-57-213-Compulsory-Requirement-of-Probate-3871.asp#.UtNk1fRDuSo

Also for gift deeds I have heard that it is possible to make conditional gift deeds in which the life term interest of the giver can be specified and if that is not fulfilled then the giver can revoke the gift. Can you please advise on this or point me to information available online pertaining to this.

I appreciate your advise.

Regards,

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 13 January 2014

1. Probating of Will is not necessary, "IF" there at no disputes between other legal beneficiaries AND / OR, IF not insisted by the competent authorities, for mutation of property.

2. Probate IF required entitles lots of expenditure and a time frame of about 4-12 months in Mumbai.

3. An Gift deed is "irrevocable", hence cannot be conditional, more so since one of the requirements of a Gift is that the Gifted property must pass on due possession immediately, for the Gift to be effective. Hence under no circumstances, a Gift Deed can be revoked.

4. For safe guarding the financial and/or life-long sustance interest of the Gift Maker, a separate stamp duty paid registered arrangement-deed may be executed between the Gift Maker and the Gift-Receiver, with the necessary clauses.

Keep Smiling .... Hemant Agarwal
https://hemantagarwal21.blogspot.in/?view=sidebar

1 Like

Prasad (PARTNER) 14 January 2014

Gifting is better than Will if donor is comfortable to do this. A gift deed can be made as conditional as well in which case the gift stands revoked if a particular event happens or does not happen as restricted in the deed. However, this conditional event should not be one which can be controlled or managed by donor. Transfer of Property Act Sec 31 and 126 together apply here.