• Transfer of property

Hi all,
I have seen bungalow in MIDC Dombivli Maharashtra. Its ownership is with MIDC ie 95 years lease property. There is a death Owner of this property who had made agreement with MIDC but he had made notarized will in which he clearly stated that after my deaths my wife will be solely Owner of this property. After owner's deaths his wife has submitted his death certificate, notarized indemnity bond and declaration of legal hairs to MIDC. All documents were submitted as notarized copy on july 2010 to MIDC. Based on above documents MIDC has. Issued transfer of ownership on his wifes name as a legal heir. 
I am interested in this property. Also both daughter and son don't habe any objection to sell this property.They have given me all documents for loan purposes but some national banks like SBI asking for Legal heirs certificate or succession certificate even submitting all above documents on which MIDC made the transfer of ownership.Others bank like PNB HDFC not asking for the same
Is it really necessary that, Legal heirs certificate or succession certificate is required for purchasing this Bunglow. I dont have doubts because ownership is aleready transferred by MIDC with letter issued in the name of owners wife.
 As it is Lease agreement with MIDC should i go forward or should i asked any other legal documents from Bunglow owner ie Owners wife.
Please suggest
Thanks in advance
Asked 4 years ago in Property Law
Religion: Hindu

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13 Answers

See different banks follow different guidelines for disbursing loans and further they have different set of rules made for giving loan , SBI is strict in terms of loan giving loan to common people they have there list of requisite documents to do away with slightest chance of liability.

Now, this transfer is valid, first of all under Hindu succession act Succession Certificate is not mandatory, second there was a testimony transfer that is through will so in that case when will is executed and no claim to that effect there than its valid transition.

Most importantly the lease has been transferred so now you can further seek transfer of this lease on your name there wont be any issue and no legal heir or document is required in this transition.

For future safety you can take signature of all the legal heirs to avoid any unwarranted legal heir claim (which will be futile in end but will drag you in litigation so to safeguard yourself from litigation take consent and signature of legal heirs) rest the transfer issued by MIDC is valid you can go ahead. i dont think there is necessity of any other document.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Legal heirship certificate is not required if this property was legally transferred on his wife's name by executing a testamentary disposition i.e., by a will.

Moreover the same has been properly mutated.

Whatever the circumstances be, it is advisable that you obtain a legal opinion from a local lawyer before venturing into the purchase.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

you need letter s of administration from district court

2)daughter and son can file consent affidavit in court

3) you would need LA in 6 months

4)succession certificate is only for movable debts and securities

5it is not for immovable property

6) LHC would not suffice

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Your question: Should i asked any other legal documents from Bunglow owner ie Owners wife?

Answer: Technically speaking, the bank needs the wife's succession certificate. It is a precautionary measure by bank that no other legal heir should come and claim property later on. This is because if the property is ancestral property, then there could be other legal heirs.

If the wife has invited claims in two local newspapers, if you have that copy please show it to your bank. And if no claims have come, and if she has proof of the same, you can produce that before your bank.

Otherwise by the bare perusal of the documents already available you can purchase the bungalow from her.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. Since MIDC has already transferred the property to the wife's name and as all legal heirs of original owner have also given their NOC for transfer of property to the name of widow of original owner, the title appears to be clear.

2. However in your sale or transfer document, as a precaution, what you can do is, have all the legal heirs of original owner as confirming parties. The widow will be the transferor/assignor and you will be the transferee/assignee.

3. If the owner has left behind a Will, then generally it is prudent to have the Will probated (in case there is an executor appointed) or apply for letters of administration in case there is no executor named in the Will. In this way it gives credence to the executor/administrator with whom one can deal with safely in absence of the original owner. That is the reason why some banks are insisting for probate/LA (i.e. legal heirs certificate).

4. You can opt for the banks which are waiving this requirement and go ahead with the deal with the above in mind.

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

1. If the legal heirs are agreeable to become confirming parties in the transfer document between the mother and you, then no further document is needed from them.

2. If they do not want to become confirming parties then you can request them to make a simple NOC affidavit stating that they have no objection if the property is transferred/assigned by their mother to your name.

3. The NOC affidavit from the legal heirs can be on 100 rs stamp paper and notorised.

4. The NOC affidavits are actually not required but its always better to take them just as a precaution since the father's (original owner) Will was not probated by court.

5. Notorised Will is absolutely legal. A Will actually does not require any notary or registration.

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

Once there is legal will, you do not require a succession certificate. Only an individual dying intestate, who does not have a will, then there is need to get a succession certificate from Court.

Your question: Still i required any legal documents from owner s legal heirs?

Answer: The banks can ONLY REQUEST FOR A SUCCESSION CERTIFICATE IF THERE IS NO WILL OR IF THE WILL IS INVALID. If certain banks are asking for Succession Certificate, then you have no other option that to get it. The succession certificate can be obtained by the wife through this procedure:

By filing a petition to the District Judge within whose jurisdiction the deceased person ordinarily resided at the time of his or her death or, if at that time he or she had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found.

A petition for succession certificate must contain the following particulars:

1. Time of death of the deceased;

2. Residence or details of properties of the deceased at the time of death within which Judge the jurisdiction falls under;

3. Details of family or other near relatives;

4. The rights of the petitioner;

5. Absence of any impediment to the grant of certificate.

Your question: Which documents need to ask please give in details and whether it required registration or notary please clarify.

Answer: This will not be required as the succession certificate is issued by Court so it has legal value more than notary etc.

Your question: Also notarized will is legal or not

Answer: Yes it is legal. MAKE SURE THAT THE WILL IS VALID. Pre-requisites of a valid will include:

The essential elements of a valid will are:

1. As a writer of the will, or testator, you must be at least 18 years of age;

2. The testator must have testamentary capacity, and must state in writing that he is of sound mind and is writing the will of his own accord. Attache a medical certificate;

3. A statement declaring the document as his will must be included;

4. An executor should be appointed.

5. The document must contain at least one provision that names a personal guardian for a minor child and/or at least one provision providing for the allocation of his estate;

6. If the will is not written in his handwriting (i.e., typed), he must sign the will and it must be attested to by two witnesses who are not beneficiaries and who saw the will signed by him;

7. The will need not be registered;

8. If the will is sealed, then the authenticity is genuine;

9. The will was not obtained by fraud, coercion or undue influence;

10. To make sure there are no other wills regarding the same property;

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

notarised will is legal

2) it is always advisable to obtain probate of will

3) if no executor appointed in will then letters of administration from district court

4) mere legal heir certificate is not sufficient

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

There`s no need of Succession certificate neither it issued in case of immovable property.

As per law, probate is compulsory in Mumbai for transfer of ownership through testamentary succession. So, bank asking Succession/L H C, which actually should have asked for Probate is also not wrong, and if other banks are granting loan without probate that also fine.

Without probate, her children can question the sale, than again requirement of probate will arise, So in sale deed, all children should give consent to sale and no objection and validity of WILL and sign as witness.

Than you can process with other banks without Succession/L H C/Probate.

WILL on plain paper is valid, only required duly execution and attested by 2 witnesses.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The other cosharers have to relinquish their rights in their mother's favor by executing a registered release deed in support of the affidavit indemnifying against the future losses, that may arise.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

See in the general Scenario the will is valid the transition is valid you don't need any document as the children has already given up there right even if there was will.

Further In case of will to be 100 percent risk free you can ask for a probate of will from civil court, which signifies the will is executed. Then there wont be any chance of legal heirs to contest now also there is no chance but still you can 100 percent sure.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Firstly, there is a well settled law that if the property is once a leased property then it would be for leased forever.

Secondly, the right was only transfer to his wife as to reside in the same for rest of the years out of 95.

Thirdly, then later it might be transfer to the son in the future, but none of them have the right to sell the property as the right is very limited.

I advice you to not to buy that property.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

You can ask for other legal documents from bungalow owners

Prashant Nayak
Advocate, Mumbai
27229 Answers
88 Consultations

4.4 on 5.0

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