• Inheritance property sale

Husband/Father (decree holder from 1987) of the property under MC area, Died in 2005. Leaving behind wife and 3 sons, No will was executed by him. and till today in the municipality records, there is the name of the father.

Now we the wife and sons want to sell the Property.

We are Canadian Citizens and will not be coming to India and want to make sale through Power of Attorney so some known in India

Please provide the easiest way along with the full proof procedure.

We don't want to opt any Court Route for succession certificate
Asked 6 years ago in Property Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

14 Answers

First transfer land in your name in records filing for mutation by providing details of property and details of all legal heirs with identity proof along with your affidavit and death certificate of father. A application for transfer has to be made to revenue authority in local limits who's land is situated with above-mentioned documents since all legal heirs are their it will be fast as there shall be no objection.

When the name is transferred in records.

Than make a sale deed of same land there won't be any problem.

Execute a post for the purpose of transfer of land records and property sell and registration for all legal heirs.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

As you are NRI and Don't want to come to India for the sale of Land, but please note that currently, the land is not in your name so you have to devolve it on your name firstly.

So you need to contact the Municipality Committee telephonically or through an Agent that what is the exact process to change the records?

Abhinav Sabharwal
Advocate, New Delhi
41 Answers

4.5 on 5.0

1. It will be difficult for selling the property of the deceased without a Letters of Administration being obtained from Court

2. under the petition for grant of letters of administration the court will appoint an administrator who can then deal with the property of the deceased with the permission of the court

3. any one of you can become the administrator

4. any prospective buyer will be convinced to buy the property if he has to deal with the administrator who is legally authorised to deal with the property of the deceased

5. many buyers avoid buying a property which is standing in the name of a person who has already passed away and thus the buyer would have to deal with the persons who claim to be the deceased person's legal heirs. a stranger buyer will not know how many and who all are the legal heirs of the deceased. therefore buyers prefer to from the administrator

6. so it all depends on the prospective buyer. if he is satisfied with the fact that you all are the only legal heirs of the deceased and that all are consenting for the sale, then he may proceed to buy without insisting for letters of administration

7. for the time being you can execute a power of attorney in favour of some trusted person who will execute the sale of the property on behalf of you all

8. but please keep in mind that this will be a double whammy for the buyer since now he would be dealing with some person who claims to be the authorised constituted attorney of you people and thus the buyer would not have seen you all personally. so just put yourself in the buyer's shoes and think, would you buy such a property which is being sold by a constituted attorney of the legal heirs of the original owner. it would obviously raise many concerns in the minds of the buyer

9. if you do not wish to obtain the letters of administration from the court then you can proceed to sign a power of attorney with power to sell in favour of a trusted person and see to it that you have this power of attorney duly registered. this will give some weightage and credence to the power of attorney

10. your attorney can receive the sale consideration on your behalf and then remit the same to you through banking channels

11. since the property is in India, you will have to comply with indian tax laws and would be liable to pay capital gains tax on the sale price received

Yusuf Rampurawala
Advocate, Mumbai
7484 Answers
79 Consultations

5.0 on 5.0

apply for and obtain LA in name of legal heirs

2) succession certificate is only in respect of movable debts and securities

3)after obtain letters of administration apply for mutation of property in name of legal heirs

4) then only sell the property through registered POA executed in favour of family member

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Dear Client,

No need of succession certificate, Wife and sons/daughter are equal Share holder in property. Highest if needed is Legal Heir Certificate by applying to local tehsildaar that can also be done by POA holder.

POA can be executed in Indian Consulate and registered with local sub registrar within 4 months in India.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Firstly, now the law has change a bit with regard to the POA by latest Supreme Court jugdement.

Secondly, you all have to first apply for the succession certificate before the civil judge.

Thirdly, the moment you get the succession certificate you can apply for your respective shares in the court of law.

Fourthly, the moment decree will be there super your respective share then you can get it transferred on one or two or all names in MC as per your agreement and understating between all.

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

You may have to obtain legal heirship certificate with the full list of successors in interest to the property of deceased person in order to inherit the property upon his intestate death.

Without the legal declaration of the legal heirs, the buyers may not be willing to buy the property.

You can no doubt give power of attorney deed in favor of someone very closely related to you in India to manage the sale proceeds in your absence on your behalf.

For that you may have to execute a power of attorney deed in that country and get it notarized by a notary of that country or to get it attested by an official of the Indian Embassy/High commission.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

It is very risky to execute gift deed

2) there is no guarantee that you would get your money

3) you can execute SPA in favour of relative for execution of gift deed

4) SPA should be attested before Indian consulate

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Yes the gift deed is as authentic as sale deed but no consideration amount can be shown in deed as gift is without consideration. So if buyer has to pay tax for the gift on stamp duty value of property and he shall not get any benefit for amount he is paying in deductions further the whole amount shall be black money transition for both the prospective. but can be useful for buyer if he has got such income he don't want to show in documents.

Yes POA can execute and register on your behalf the in power of attorney specifically this has to be mentioned to execute gift deed in favour of so and so. SO special power of attorney for same purpose can be made.

yes he will be the owner of the property and he can sell it further

Pros : Stamp duty is less in gift deed, solid proof of transfer as a sale deed.

cons. Black transition income tax department if track down can levy penalty,

See i have told you way in my last answer i think you didnt like it, the only way the legal way to do is the name has to be transferred first in land records and based on that the sale deed has to be made. the amount of TDS has be paid and then transferred in your accounts.

Also there are exemption for tds if there is DTAA agreement with your country your residing in you will get tax benefits there.

and refer the below article for exemption and lowering tds amount https://www.nitinbhatia.in/real-estate/nri-lower-tds-property-sale/

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1. Even if 20% TDS is deducted, and if your actual tax liability is lesser, then why would there be any problem in claiming refund. Govt would not obviously want to retain excess tax than what is required to be paid. Let me talk to my CA and get back to you by next week.

2. If the buyer is a relative and he trusts you, then one problem is solved. He won't insist for a letters of Administration. However this may be the requirement of the registration authority. The registrar may ask to produce the letters of Administration for registration purpose. This will have to be taken care of, whether you go for a sale deed or gift deed.

3. If you are opting for gift deed, then how will you ensure that the buyer donee pays you sale price promptly? What if he defaults? He can say the property is gifted to him and so there is no need for him to pay any consideration. However a MOU can be signed between you and that relative in which he agrees to pay you the price simultaneously on the gift deed being registered.

Yusuf Rampurawala
Advocate, Mumbai
7484 Answers
79 Consultations

5.0 on 5.0

If you might want to gift the property to any of your blood relatives, Gift deed can be used. In the case of immovable property, it is required to register the Gift Deed as per Section 17 of the Registration Act, 1908.

This kind of transfer is unavoidable. When you gift the assets like land, it belongs to the beneficiary or receiver of the gift and you cannot switch the transfer or even ask money related compensation.

It can be a cost effective method of transferring the ownership.

You can effect the transfer by registered gift deed by direct execution or through your a power of attorney agent.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

20% TDS, yes

Kindly note that while it is not mandatory for an NRI / PIO to have a PAN for entering into a property transaction, PAN is required to repatriate the sale proceeds of the property out of India.

GIFT DEED ? Too much complication, No consideration involve in Gift deed, and relative can back step in future, also, repatriate money out of India no that easy and shall invite legal action if unearth.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. Gift deed and sale deed both will give title to the buyer. But in case of gift - when in future the buyer wants to sell the property, he will not be able to claim any deduction from the sale proceeds received on selling since In a gift the buyer purchase price is 0. But this is the buyer's headache.

2. By whatever mode buyer acquires the property - gift or sale, in both cases he would become owner and thus entitled to sell the property in future

3. A gift deed can be signed on behalf of the donor by the GPA holder

4. Please let me know if you have a OCI passport. Do you have dual citizenship of India and Canada?

Yusuf Rampurawala
Advocate, Mumbai
7484 Answers
79 Consultations

5.0 on 5.0

1. If you are aware about bitcoins and comfortable dealing with the same, then you can also request the relative to send bitcoins (corresponding to the value at which you have agreed to sell the property to him) to your bitcoin wallet

2. but you will have to make disclosures about the source of bitcoin in the country where you presently hold citizenship

3. bitcoin transfer is fast and efficient

Yusuf Rampurawala
Advocate, Mumbai
7484 Answers
79 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer