1. If paaa is made in joint names, then on demise of anyone joint holder, his or her share will go to his or her legal heirs and not to survivor
2. If you make a nomination in favour of your son then it will be limited only to your 50% share
3. So in order to make son a full nominee, you and your mother will have to jointly appoint your son as nominee
4. Nominee is only a trustee for the legal heirs. He does not automatically become owner on transfer of flat to his name on demise of owner
5. Also till the time the new flat is ready and handed over, the relationship of landlord - tenant will subsist
6. So a gift of the proposed flat cannot be made till the time it comes into existence. The new flat has to be tangible and not extract
7. Also assuming that gift of proposed new flat can be made, then the flat atleast have to be identified
8. As IOD is issued, means plans are sanctioned. So it is known what construction is to be made, how many floors the new building will be of, how many new flats will be there, etc.
9. So if the landlord is mentioning the exact details of new flat with identification number and floor in the paaa, then we can go for a gift of rights in the new flat
10. But stamp duty exemption on gift deed from mother to son is available only for a residential flat and not for gift of rights in proposed new flat. So there may be issue in stamp duty payment and registration of such gift deed
11. Even if your mother executes a release deed in your favour to relinquish her 50% share in new flat to you, there would be stamp duty payment issue. Release deed is exempted from stamp duty payment only on release by specified relatives of shares in an ancestral property
12. I want to know who are the legal heirs of your mother apart from you two brothers?
13. Also who are the legal heirs of you two brothers? I am aware you have a son. Apart from him who all are there? Your wife and any other child?
14. You can work on a Deed of Family Arrangement where all family members will agree that the flat to be allotted to you and your mom should go to your son exclusively upon demise of you and your mom.
15. The other family members can agree that none from them will claim any right in the 50% share of the mother in the flat to be jointly allotted to you and your mom and all of them have accepted the Will of the mother
16. I still feel that the original consent order can be modified to the effect that the landlord agrees to accept your son as tenant instead of you. As long as the parties are agreeable, i dont see why the court will refuse to modify the consent order. If that is done then you only need to deal with the 50% share of the mother
17. I can understand the apprehension of your mother that if she gives up her right in the new flat then she may be deserted or disowned or something like that. All such things are indeed happening. But do inform her that even if she does give up her right in your favour or in favour of your son in her lifetime then too she is adequately protected under s. 23 of senior citizens act
18. She can always make an application to the authority constituted in above act to have her gift deed or transfer revoked if she is not adequately taken care of by the persons who are responsible for her care and physical needs in her old age