• Purchase of flat on Rs 1 stamp paper, and ancestral property

Hello I have few questions which I m asking hoping that higher brains of this country would answer it giving their precious time for which I will be grateful to them and this platform !!! I am a boy of 28 years. I have a brother , mother and sister ... 

1.. I am purchasing a flat in Ranchi which is capital of Jharkhand on Rs1 stamp paper with no stamp duty total cost for Registery would be around 15000 since Jharkhand govt has waived off Registery charges on woman's name ... I am purchasing this flat in my Mothers name to get benefit of this scheme after selling ancestral land of mine village ... But since its a heavy investment I want to be on safer side ... Is there any point which I can include on sale deed that my mother can't sell it alone ??? 
Also I can't buy in joint name since than I have to pay stamp duty and fees which would cost me around 4 lacs.... We are two brothers and mother and my mother is no more .. How could I be on safer side that mine mother can't sell it alone or give it as a will deed alone to any party ????? 

2.. I have ancestral land , my brother is mentally not fit and has medical certificates of his treatment in psychiatry centres. Do he has rights over the property how could I keep his property safe or get his share of property mutated in my name .. What kind of documents I have to prepare for this that I will be secured that he doesn't damages his share of property since he is getting his property mutated in joint name with me ??? 


3 .. In ancestral land my sister is claiming her share of land but mine father died before 2005 .. We ate from hindu family.... Does she will get her claim ????

4... I have property in grandfather name in which house is constructed and my uncles are not willing to divide it. Since partition suit takes many years to dispose off ... I want to get mutated it in my mother's name and obtain land possession certificate which are must to sale it ... I want to sell it ..how legally I can get these documents in which way ??

5.. My mothers father has given some ancestral property to his only son .and some part is remaining ..how my mother could claim my mothers father has died 1 year ago ..... Is such documents valid which her father has given to his son ???? 

I hope lawyers would give their time as I always keep thinking over these and my health is getting deteriorated these days.... Vl be grateful to you lawyers always .
Asked 4 years ago in Property Law
Religion: Hindu

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15 Answers

1) if flat is purchased in mother name she would be absolute owner of property

2) she would be at liberty to sell it without your consent

3) mother is at liberty to bequeath flat by will or transfer it by gift deed during her lifetime

4) better purchase flat in joint names

5) sister has no share in ancestral property if father died before 2005

6)you can make application to court to be appointed as guardian of brother if he is not mentally fit

7) mother has to file partition suit to claim her share in deceased father property

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

1. To safeguard your interest, include a clause in the sale deed with respect to source of funds towards purchase of this property. You may mention that the sale fund has been generated by selling the ancestral property.

2. To become a custodian of his share of property, you will have to obtain a certificate of his guardianship on the strength of his mental illness.

4. Your dad's share in this property is to be shared in between you, your mother, and your sister. Contact a local lawyer fr mutation.

5. Any property that has already been given to your maternal uncle by your maternal grandfather cannot be claimed by your mother; but she has a share in the intestate properties left behind by him. Contact a local lawyer for more assistance. Your mother ca n file a partition suit and claim her share.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. first enter into a MOU between your mom and 2 brothers. In that it will be agreed between the parties that in order to avail the stamp duty benefit scheme of the govt., the flat will be purchased in the name of the mother. later the mother will gift away her 2/3rd share in the flat to her sons. so all 3 parties will have equal 1/3rd share. in this way your mother will not be able to sell the flat alone. at the most she can deal with her 1/3rd share only. but no buyer will be willing to buy only 1/3rd share in a flat. your mother can sign on behalf of your brother as a natural guardian, since your brother is not mentally sound

2. yes offcourse your brother has a right in the ancestral property. since he is not capable of handling his share due to his mental inability, you can make an application to the court to appoint you as the legal guardian of your brother. your mother can also deal with his share being her natural guardian. the mutation for your brother's share in the property can be done in the name of your mother in the capacity of a natural guardian. a legal guardian will need permission from the court to deal with the property of the person for whom that guardian is appointed. in this way a mentally unstable person's right in property is protected by the court. even a buyer will not buy from the natural guardian or legal guardian unless a court permission is obtained

3. since your dad passed way prior to 2005, your sister does not become a coparcenor and thus cannot claim any share in the property. any legal attempts made by her to so claim will fail

4. the only legal way for your mom to claim her share in the property left by your grandfather is to file a partition suit in court. but first issue a legal notice to your uncle and mark the same as CC to all government authorities to inform that your mother has a legal share in the property. also issue public notice in newspapers warning the public not to deal with your uncle since he is not the only owner of the property and your mom too has a right in the property

5. your mom is a coparcenor in the ancestral land since her father died only 1 year back. that means in the year 2005 her father was alive and thus she automatically becomes a coparcenor in the joint family property. so the grandfather cannot give a share in the land to the son without the consent of all the coparcenors including your mom. you will have to challenge it legally. issue a legal notice and see what response you get

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

partition suit takes 15 years to be disposed of . depends upon pend ency of cases in court

2) your mother would get her share in property

3) you cannot include clauses that mother cannot sell flat

4)you have to make application to district court for being appointed as guardian of your brother as he is not mentally fit

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

1. See if the land is in name of mother she will be absolute owner of the property in her life and she can transfer it to any one she want without your consent. No such condition can be imposed on her in sale deed restricting her right on land as she will be the absolute owner of the property.

2. You have to apply before court for getting legal guardian status for your bother as mother is not well and you will take care of him and manage his properties.

3. if father expired before 2005 she has no right supreme court in Prakash vs. Phulwati judgement clearified this position.

4. See if they are not mutually agreeing partition suit is only way for demarcation of the share, but still you can get land mutuated in name of all legal heirs of your father including mother and you and your brother, You have to submit an application for mutation along with death certificate of father, grand father and family rasan card and other photo ID with valid Affidavit.

See for selling if buyer agrees for undivided share than only you can sell for dividing share partition suit has to be filed.

5. If it is ancestral property then father cannot give without consent of mother to only son so she can file a suit for claiming the right in ancestral property and partition, since no consent on transfer of ancestral land is not there same has to be challenged.

Also for saving stamp duty you can go with name of your mother but if there is any probability for mother transferring property better get in joint name and pay amount of stamp duty.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

1.. I am purchasing a flat in Ranchi which is capital of Jharkhand on Rs1 stamp paper with no stamp duty total cost for Registry would be around 15000 since Jharkhand govt has waived off Registry charges on woman's name ... I am purchasing this flat in my Mother’s name to get benefit of this scheme after selling ancestral land of mine village ... But since it’s a heavy investment I want to be on safer side ... Is there any point which I can include on sale deed that my mother can't sell it alone ???

Ans: Your purchase will be safer side if your intention is not to defraud the Government. Right now you are selling your ancestral property which is bonafide and purchasing in the name of your mother. Your decision is correct.

2. Also I can't buy in joint name since then I have to pay stamp duty and fees which would cost me around 4 lacs.... We are two brothers and mother and my mother is no more... How could I be on safer side that mine mother can't sell it alone or give it as a will deed alone to any party?????

Ans: Check out if there are any conditions in respect of clog for transferring the property by way of sale or gift etc. For any particular period .

3.. I have ancestral land , my brother is mentally not fit and has medical certificates of his treatment in psychiatry centre’s. Do he has rights over the property how could I keep his property safe or get his share of property mutated in my name.. What kind of documents I have to prepare for this that I will be secured that he doesn't damages his share of property since he is getting his property mutated in joint name with me???

Ans: Since your purchasing the property by selling ancestral property, as such the main sources of purchase amount is coming out of sale proceedings of ancestral property. As such your brother and sister may claim a share. Better raise a loan in your name if possible, to make it your exclusive property purchased in the name of mother.

4... In ancestral land my sister is claiming her share of land but mine father died before 2005. We ate from Hindu family.... Does she will get her claim????

Ans: Definitely she will get a share. But if she asked to went to Court you may delay the process for next 10-20 years.

5... I have property in grandfather name in which house is constructed and my uncles are not willing to divide it. Since partition suit takes many years to dispose off ... I want to get mutated it in my mother's name and obtain land possession certificate which are must to sale it ... I want to sell it...How legally I can get these documents in which way??

Ans: You must file a suit for partition after deciding only you get the rights.

6... My mother’s father has given some ancestral property to his only son .and some part is remaining. How my mother could claim my mother’s father has died 1 year ago..... Is such document valid which her father has given to his son????

Ans: She can claim her share by filing a suit against her brother.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

If you would like to avail the concession given by the government for the women in purchasing the property without stamp duty, then the property has to be bought on her name alone.

If the property has been purchased on her name then she becomes an absolute owner of the property, by which she can sell, alienate, encumber the property in any manner and the mode of disposal as per her desire shall be her decision which cannot be questioned by anyone,including you especially during her lifetime.

You cannot ensure that the property shall pass through safe hands and arrive you, there is no provision in law for this.

You have to depend on the trust alone.

2. You first have to declare your brother as a mentally incapable or challenged person through court by producing medical documents and then file a petition for court guardian for taking care of his property on his behalf.

The court appointed guardian shall be the custodian of his property for taking all decisions in respect of his share in the property for the welfare of the mentally challenged shareholder.

You cannot take any decision on his share of property on your own, it woujld be illegal.

3. Your father's share of property from his father cannot be ancestral property, hence if it is not ancestral property then she is entitled to her legitimate share in the property as a right.

Ascertain the facts and then decide to fight against her demand.

4. Without a partition you cannot mutate the property to your mother's name. Moreover she is not the only legal heir to have the entire share of your father, all the legal heirs of your deceased father are entitled to a legitimate share in the properties that belonged to your father as his share out of his father's property, therefore you cannot sell that share of property all alone by yourself or by your mother alone.

5. If your maternal grandfather had given away some properties to his son by a registered deed, then your mother can claim a share in the remaining properties which have been left behind intestate by your maternal grandfather,

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

1. You may have to file a petition under mental health act before the district court in your district to declare your brother as medically unfit with the aid of the medical documents.

2. The partition suit generally takes 5 years to get disposed depending on various factors.

If your mother's father has transferred his certain properties to his son by a registered deed, then your mother canot claim any share in that property, no such cas will be maintainable.

3. You cannot add any such conditions in the sale deed because the sale deed is executed by the seller and it is not your desire that you can add any clause as per your desire.

Your mother once purchased the property can dispos it in any manner even without allocating any share to you.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

In sales deed You can't restrict her from selling the land. Yes he has all the rights in Property m the mental health Act protects such people. If partition has happened before the amendment then she will not be entitled for share. If the uncle has share in that property he will object to the mutation. She can claim her share in the property equal to her brothers.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

If possible you should file a civil suit for permanent injunction. You have purchased this flat after selling of ancestral property and it is proven fact that your mother had no income at the time of purchase of that flat. In this condition this flat will be treated as ancestral property. You have equal right and common share in this property therefore you can file a civil suit for permanent injunction. In this civil suit you claim that you have been in possession of this property however this property is in the name of your mother but it is an ancestral property. According to Order 39 of the code of civil procedure the balance of convenience is in your favour therefore court will grant permanent injunction in your favour. If a person have in common share in the property and already in possession of the property then he has right to get permanent injunction and stop the other co sharer to transfer this property without permission of other shareholders.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Hi,

In case of your brother, the certificate given by doctor will help. Your mother will have to file partition suit. You may take will from mother after getting the property registered on her name.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. The modification application though can be filed in SC on the grounds of urgency that she is old and suffering a writ for modification can be filed under article 32 but in my view there wont be any use, pursue the application before high court it can be decided in single hearing till then in lower court exemption can be filed.

2.Directions from SC can be taken but since the quashing is taken up year wise Such directions are not readily given to high court to decide it expiditly,

3. A suitable date in the matter can be taken up with some time gap so that matter come on the top of the board.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. for relaxation of bail conditions, a petition before the court granting the bail has to be moved and not before any other court including supreme court.

2. Even if you approach supreme court for a direction for an expeditious trial, the process in the high court may not improve or you may not get desired result in high court.

3. You can ask your lawyer to move registrar on this for a speedy disposal.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

You cannot file bail modification order directly in SC

2) your mother is not senior citizen . No case for expedited hearing is made out

3) you canseek early hearing in HC but chances of success are bleak

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

1. If the case is pending then you can not approach the SC directly.

2. Yes a petition for expediting the matter can be filed in the SC.

Yes you may file such application before the CJ.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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