• Partition of land between brothers and their childrens

We have a single plot shared between 3 brothers, plot is registered in the name of middle brother.
All three brothers have divided the plot (not legally) and built independent house on their part of the plot.

The elder brother and younger brother both have expired.

1]
Elder brother has 5 daughters, they want to give away their part of property to middle brother in exchange of money, what is the procedure here?
Property is alaredy in name of middle brother, but to vacate the elder brother’s daughters from property, middle brother will pay market price for the part of property they are staying, what is the best way to ensure there are no legal issues later from elder brother’s 5 daughters, and their families.
Will it be a partition deed or release deed or purchase or NOC?
What kind of transcation possible between middle brother and elder brother’s daughters?

2]
Younger brother’s sons wanted the part of their property on which their father’s house stands to be transferred to their name. 
Based on legal opinion it was decided the best way to do this is to show it like outright purchase of that part of property by the son of younger brother from middle brother, since middle brother was sole owner of the property. It was told Gift deed and release deed was not possible because the younger brother was not alive and gift deed/release was not possible between middle brother and children of younger brother.
Is the decision taken here correct?
Asked 4 years ago in Property Law
Religion: Hindu

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15 Answers

They can make a registered agreement for relinquishing all rights over property and handing over possession to middle brother further agreeing that they shall put no claim in the future the relinquish deed can be made on stamp and can be registered. IT will be relinquish deed where they will give up there possession right over property though ownership is already with middle brother,

2. There can be a gift deed between the middle brother and children of younger brother it wont be any problem but if the son is paying any amount to middle brother then sale deed is better idea because in gift deed there cannot be any consideration.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. In both the cases, the parties may execute a duly stamp duty paid & Registered Family Settlement Deed, with strategic clauses, which must jointly be signed by all the stake holders.

2. Release Deed can be signed ONLY by Title-Owners and not heir-owners /claimants.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. All the family members can enter into a Deed of Family Arrangement

2. Under that deed, the middle brother will pay money to the daughters of the elder brother and in consideration the daughters will relinquish and give up their rights in the property forever

3. under the same deed the sons of younger brother can pay money to the middle brother in consideration of the middle brother giving up his right over the portion of the land on which the younger brother's house stands alongwith the right in the house

4. Alternatively a Deed of Partition cum Family Arrangement can be signed between the daughters of elder brother, middle brother and sons of younger brother by which the entire plot will be first divided into 3 separate plots and thereafter the aforesaid arrangement can be described and made.

5. the deed will have to be stamped and registered

6. it can be stated in the deed that though the plot stood in the name of middle brother, the enjoyment was by all 3 brothers and the registration in name of middle brother was only for sake of convenience

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

Dear Client,

Who made the payment to purchase the plot. Catch is here, that property already in his name, so all he needs to get the property vacated, in this situation - partition deed or release deed or purchase or NOC, has no relevance.

Let assume all there contributed, than release deed is best option. but the language of deed should be precise to give effect the release of ownership in property which was vest in daughters for XYZ reason.

Through Gift or settlement, both will cost same stamp duty, property can be transfer in younger brother son`s name.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

deed of family settlement can be entered into between family members

2) daughters can relinquish share in property on basis of money paid to them in full and final settlement of their claim

3)younger brother son can purchase part of property from middle brother

4)relinquishment deed is not possible

5) in alternative middle brother can gift property to younger brother children

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Yes the decision taken based on the legal advise is sound and you may go ahead and execute the same accordingly.

It is true that a gift deed can not be executed after the death of the person who happens to be the owner of the land.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) From elder brother daughters you can take NOC and get possession of house by paying consideration for vacating house and will not claim any legal rights in the future.

2) Middle brother can gift the property to any one show as gift deed to younger brother's son name.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1. Since the entire property is already in the name of the middle brother, there cannot be any registered deed be maintainable especially in respect of the proposed transfer by the daughters of the deceased elder brother.

However in order to make a binding on the daughters to this commitment, a notarised release deed relinquishing their rights in the property that was occupied by their deceased father in the capacity of his successors or legal heirs, can be obtained for the purpose of safety.

The compensation given in lieu may be mentioned in the notarised release deed.

2. You have been rightly guided, you can execute a registered sale deed so that he becomes an absolute owner without any ambiguity.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

1]

Elder brother has 5 daughters, they want to give away their part of property to middle brother in exchange of money, what is the procedure here?

Ans: Get relinquishment deed or release deed from the daughters of elder brother, either jointly or individually.

Property is alaredy in name of middle brother, but to vacate the elder brother’s daughters from property, middle brother will pay market price for the part of property they are staying, what is the best way to ensure there are no legal issues later from elder brother’s 5 daughters, and their families.

Ans: They above deed/s is sufficient.

Will it be a partition deed or release deed or purchase or NOC?

Ans: Get release deed only.

What kind of transcation possible between middle brother and elder brother’s daughters?

Ans: It will be by release deed.

2]

Younger brother’s sons wanted the part of their property on which their father’s house stands to be transferred to their name.

Ans: Either may be asked to execute above deed or get into partition deed.

Based on legal opinion it was decided the best way to do this is to show it like outright purchase of that part of property by the son of younger brother from middle brother, since middle brother was sole owner of the property. It was told Gift deed and release deed was not possible because the younger brother was not alive and gift deed/release was not possible between middle brother and children of younger brother.

Is the decision taken here correct?

Ans: Right of preemption always exist between co-sharers. It means that one of the co-sharer has a first right to purchase the property otherwise he can bring a stay order on the proposed sale in favour of third parties.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Only daughters and middle brother. Husband kids have no role.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

you can make the husbands sign as witnesses

if the kids are major they can sign as witnesses too

though above is not required but there is no harm too. It will just help keep the records straight so that in future no party can cry foul

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

You don’t need signature of daughter husband and kids on release deed

2) release deed should executed by daughters should be stamped and registered

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

The kids and husbands of the daughters have no rights in this property.

In fact the daughters of the elder brother also do not have any rights in the property since the title deed is on the name of the middle brother.

You can take proper legal advice from a local lawyer on further issues.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

You don’t need signature of daughter husband and children on release deed.

Only daughters and middle brother's signature would suffice as they the concerned parties.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

Only daughters need to sign husband and kids have no right,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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