• Property transfer to legal heir who is also joint owner

Pagdi building in Mumbai. Landlord will offer a ownership flat in exchange of the tenant flat. IOD by BMC is approved. Landlord has created the draft of permanent alternate accommodation agreement in name of my mother and me. My mother is widow age 88 and I am 66. How do I make sure that the flat gets passed on to me or my only child (age 42) after our lifetimes without hassles of probate. My mother has a WILL already made which says that this flat should go to me after her lifetime or if I predecease her then her WILL says it should go to my child (her grandson). I have a WILL made that this flat should go to my only child (age 42) after my lifetime. So what can we can do now itself in the agreement (paaa) created by landlord (still not signed - only draft received) so that the flat gets transferred in future as per my mother and my wishes to my son after our lifetimes without hassles of probate ? The landlord not agree to add my child's name in the paaa. He said tenants were mother and me and hence he will create paaa only in name of mother and me. If the paaa is named in my mother and my name, then is there anyway called as joint ownership with right of survivor such that when either of the joint owner die, the surviving joint owner automatically becomes full owner of the flat ? If my child is added as nominee in the paaa, will that give him ownership rights (without hassles of probate) in this flat in case of both my mother and myself demise ? No one else in the family has any interest in this flat because my only sibling will get a similar other flat from my mother. All that has been already sorted out within family. So the focus of this flat is to make sure it comes to me and then to my child without hassles of probate.
Asked 4 years ago in Property Law
Religion: Hindu

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12 Answers

Sir in case the will is registered there shall be no hassle of the probate as based on registered will the flat can be transferred in name of you or your child as per the will. So you and your mother can register the will.

Further to avoid any discrepancy once the flat is registered in you and your mothers name you mother can prepare a gift deed in favour of you or directly in name of your son in her life time only.

or alternatively she can make a relinquishment deed in your favour giving you complete right of flat later you can gift to the son.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

As per PAAA you and your mother shall be joint owners.

Upon anyone's demise their respective share shall devolve on their own legal heirs/successors in interest.

The share of property of deceased shall not be acquired automatically by the surviving joint owner.

Nomination will not confer title to the nominee.

You can transfer your share in the property to your son by executing a testamentary disposition, i.e., by a Will.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

1) probate is mandatory in Bombay

2) if you r mother executes will of her 50per cent share on her demise executor has to apply for probate

3) similarly on your demise for your 50per cent share flat to devolve on your son probate is necessary

4) nominee is only trustee of legal heirs

5)best option is mother can during her lifetime execute gift deed for her 50 per cent share in flat in your name

6) gift deed should be duly stamped and registered

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

1. The landlord is right. He can not be forced to add his name in the agreement.

2. The Will made by you and your mother is enough to protect his interest in the property.

3. The legal heirs is anyway admitted as beneficiary of the agreement holder on the death of the persons mentioned as party to the agreement.

4. However to avoid future complication you can get a NOC from your siblings or to make them sing as witness.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

You have another option of gifting the property only child you and your mother both gift deed property to your child and you may put a condition that you will be staying in that house and after the teeth of both of you this house will be passed to her. This will give you the privilege of holding the property during a lifetime and gift after your death in favour of your child. The property may be registered in the child's name with the gift deed conditions to prevail during your lifetime.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Dear Client,

Under general rule of succession, after your mother death, her share will inherit in you and after your death your complete ownership will inherit in your son. So WILL or NO WILL has no effect. Hope your are only child and so your child.

And in your life time, get the patta in your name, you and your mother than execute the GIFT deed in favor of son, will make him absolute owner in your life time.

Wills will revoked automatically. Registration fees, around rs. 1000/-.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

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

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

You are mere tenant not owner of premises

2) gift deed cannot be executed of tenancy rights

3) once new building is constructed and you are given flat on ownership basis then gift deed can be executed

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Sir there are tenancy rights on PAA agreement you cannot gift the tenancy right when the new flats are registered in your name for ownership then it can be transferred as gift.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. if flat is identified then gift deed can be done

2. no landlord noc will be needed for the gift deed

3. however if he can join as a confirming party then well and good, which i doubt he will

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

You may have to wait for a stipulated period for subsequent alienation.

Hence you wait for at least one year period.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

No need to wait, GIFT will execute in a single day at sub registrar office, no NOC required from builder.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

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