• Property sale

I want to buy a property from a lady ( who got it after her husband's death). She has two children. Society paper shows that it's under her name. Can I buy the property directly from her?? Does she need to take succession certificate for her children from the court before selling the property??
Asked 3 years ago in Property Law from Mumbai, Maharashtra
1) how was property transferred in name of the lady on husband death ? 

2) was it on basis of nomination form ? 

3) please note that nominee is only trustee for legal heirs . 

4) on husband death lady , her 2 children have 1/3rd share in the property . 

5) consent of children is necessary for sale of flat  by the lady . 

6) the 2 children can execute gift deed in favour of mother for bequeathing share in the flat  

7) lady would then be absolute owner of said   flat
Ajay Sethi
Advocate, Mumbai
46766 Answers
2767 Consultations

5.0 on 5.0

1. You are silent as to how the lady has got the property from her husban .
2. if her husband had gifted the flat to her then she becomes its absolute owner and accordingly you can purchase the property from her without any objection from their children.
3. However , if the husband dies without any Will then her widow and her childrern become its owner in equal undivided 1/3rd share.
4. in that case you need to purchase the same from all of them.
5. if the children are minor then you need court permission.
Devajyoti Barman
Advocate, Kolkata
13143 Answers
175 Consultations

5.0 on 5.0

Hi, all the legal heirs have to execute to sale deed in favour of purchaser.
2. In your case lady and two children have 1/3 rd share over the property and if the children are minor then mother being a guardian has to execute sale deed in favour of purchaser.
Pradeep Bharathipura
Advocate, Bangalore
4561 Answers
204 Consultations

4.5 on 5.0

1. How did the lady get the property?

2. Did her husband make a will in her favour during his life time?

3. Her name may be showing in the society form but this does not make her the owner of the property. A nominee is not the absolute owner of the properties of the deceased. 

4. If the deceased has 2 children then it remains to be seen whether he had during his life time transferred the property to his widow or not. If the property is not transferred by way of a will or gift to the widow then her children have an equal share therein, which implies that the consent of 2 children is quintessential to the sale of property by the widow of the owner.

5. If the property is sold by the widow without the consent of her children the sale can be challenged in and struck down as illegal by the court.

6. The 2 children can transfer their share to their mother by executing a deed of relinquishment in her favour. As a corollary thereto, mother can sell the property without the consent of her children.
Ashish Davessar
Advocate, Jaipur
23140 Answers
640 Consultations

5.0 on 5.0

1) It is important to know how the widow came to acquire the property as in many Housing societies the flat gets transferred in the name of the nominee after the death of the owner. If this has happened she  will not have title over the property and won't be able to make a sale.

2) As there are two children to the widow, all the three will have 1/3rd right in the property.If the children are minor the mother will need to obtain permission from the court before making  a sale of their share of the property.

3) If the children are major and the if the father had died without a will , then the children will have to relinquish their right in the shares in her favour by a gift deed or deed of relinquishment before she can sell.

4) Show a copy of the existing sale agreement to a local lawyer before you proceed with the purchase. This will answer all the questions pertaining title and help you determine if you can buy.
S J Mathew
Advocate, Mumbai
2264 Answers
110 Consultations

5.0 on 5.0

1. More facts are required to be known for advising properly,

2. You stated that the property was in the name of her husband and she got it in her name after the demise of her husband,

3. How did the lady get the property in her name? Was there a Will executed by her husband? Was there a gift deed executed or registered in her name? Or she was just a nominee of the flat in the society where her husband was a member,

4. Is her sons minor or they are major?

5. If she is a nominee then she is not the owner of the flat which is shared by her sons also,

6. If her sons are major then all can execute and register a Gift Deed in your favour after collecting legal heir certificate,

7. If her sons are minor, then she has to apply before the District Judge for permission to sell the share of her two minor sons and only afyter availing the said permission, she can sell her and their share of her husband's property to you.
Krishna Kishore Ganguly
Advocate, Kolkata
18772 Answers
453 Consultations

5.0 on 5.0

A. How she acquired the property is so arcane? In case, if she got the property after the demised of her husband without a will, in the presence of major children, you need to take the child's consent or must mention in the Sale Deed. Perhaps, in the presence of the minor, she must take court permission to sell the property because of minor interest vested with this property.

B. Sometimes, the society would transfer the flat in favor of the widow after the demise of husband on the basis of the nominee, it will not create a legal valid title over the property.

C. In the absence of major children, release deed in favor of the widow is mandatory.
B.T. Ravi
Advocate, Bangalore
838 Answers
58 Consultations

5.0 on 5.0

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