• Inheritance

An army officer was alloted a flat before 1999 & he make his wife nominee . He got died in 2001. In 2002 his wife got possission of that flat. They had 2 kids 1 son & 1 daughter ...both were adult at the time of their death. Flat registration was done on his wife's name in 2014. Then she gifted that flat to her sister & did gift registry on her name. Now her sister wants to sell that home. The buyer wants to take bank loan but bank authority is saying that "chain" is not complete because his kids did not give rights to their mother to make gift deed thought they have not raised any doubt in this.
My question is :-
It's a self earned by that officer & his nominee was his wife. 
Why bank denied to give loan...when registration is done by legal government authority & process was followed properly. 
Now what should be done in such situation? Plz suggest with sections.
Asked 4 years ago in Property Law
Religion: Hindu

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11 Answers

1) Yes everything went smoothly because children had not taken any objections on gift deed till date.

2) After father's death there were three legal heirs mother, son and daughter. Only 1/3rd share can be gifted as legal rights of mother. At the time of gift deed she should have taken permission or no objection certificate of children as well.

3) Now they can do another gift deed or may put children name in tbe sale deed and mentioned share ratio 2/3. Than this sale deed can happen.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Nominee is only trustee for legal heirs

2) hence the 2 kids have equal share in property

3) title is not clear and marketable

4) hence Bank refused to grant any loan

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

Nomination in property does not give legal ownership it gives the right of only managing property on behalf or all legal heirs so the children still have the right and they can challenge event the gift deed.and further sale deed.

The registration can be done based on circumstances at that time because due care was not taken by the authorities but still it cannot take away the right of the children.

in this situation the deeds need to be rectified and children consent need to be taken. The children can create a affidavit for consent and that can be attached with the sale deed saying the property was registered in mothers name by there consent ant it was than her self acquired property.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

On demise of father his wife and children have equal share in property

2) widow dies not become absolute owner of property

3) gift deed between mother and sister can be cancelled with mutual consent

4) mother can apply for and obtain letters of administration from district court

5) children can execute consent affidavit

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

1) The flat was alloted to her husband and not her, as she is nominee and she is entitled to get possession after death of her husband, however shebis not direct owner and after her husband all 3 members are legal heirs of that flat.

2) Now you take POA from children on mother's sister name.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1. Because wide was just nominee and in case of intestat death all legal heirs have equal claim. So the nominee is just care take for legal heirs.

2 if registered and certified by the sub registrar the bank shall take it along with the gift deed need to retified.

3. A rectification document for all document with consent of legal heirs can solve the issue with registered and certified by the sub registrar. Even if the bank denies than based on consent and sale deed a declaration suit can be filed for clear title.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Along with the wife even her children are legal heirs during gift deed they should give her NOC or relinquish their rights in the property for the same.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

The kids also have a stake in the self acquired property of their deceased father.

Since the kids too had a share in this property, their mother couldn't have unilaterally gifted this property to her sister m

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Take a NOC from the kids, otherwise the gift in the favor of sister shall always remain defective.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

My question is :-

It's a self earned by that officer & his nominee was his wife.

Why bank denied to give loan...when registration is done by legal government authority & process was followed properly.

Now what should be done in such situation? Plz suggest with sections.

As per law, the property which belonged to the Army officer shall devolve equally on all his legal heirs upon his intestate death. The legal heirs are his wife, and children.

The wife no doubt being a nominee, she can only receive the property on behalf of the legal heirs and can distribute to all of them and can avail her own share if she is one among the legal heirs.

Thus the registered gift executed by her in favor of her sister over the entire property is invalid especially insofar as the share of property of other shareholders is concerned.

The bank is legally right in asking for further details and rejection the application for loan on this ground that the co-sharers have not executed a registered release deed relinquishing their rights in favor of the mother to make her an absolute owner of the entire property.

.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

1)-Its a self earned property .....why kids have share in this ? As we have heard kids have no rights in self earned properties.

It is a self acquired property of the deceased owner and not the wife of the deceased, therefore upon iontestate death of the deceased property owner, his legal heirs or successors in interest are lawfully entitled to a legitimate share inthe property.

2)- Now as u suggest need to make an affidavit to attach with gift deed ....will bank allow this as completing the chain.

The bank will not accept the affidavit because it is not a registered document.

At this juncture, a ratification deed relinquishing their rights and ratifying the execution of the registered gift deed by their mother can be executed and registered by the children of the deceased property owner to make the formality to be completed in all aspects to the satisfaction of the bank.

3)-or as u suggest to make gift deed again ....but now flat is on sister's name ....how it can be done again on their mothers name ?

No other option is viable or acceptable as per law at this stage.

You may consult a local advocate and discuss on this issue and decide further course of legal action on it.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

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