Pagdi building in Mumbai. My grandfather was original tenant starting 1971 in two 1 RK adjoining rooms. Grandfather died in 2009 leaving behind grandmother and 3 adult children and no WILL. In 2011, Landlord filed an eviction on all 20 rooms of the building. Grandmother (G) and her 3 adult children (A,B,C) were named as defendant in the suits for both the rooms and all 4 signed the Consent decree for both the rooms in front of judge in Small Cause Court Mumbai in 2013. Adult Son C (age 60) died in Aug 2017. He was unmarried and no children and no WILL. Adult son A (age 68) died in May 2018. He is survived by his widow (A1 age 68) and 2 children A2 (age 42) and A3 (age 36). Adult son B (age 66) and grandmother G (age 89) still alive. I (age 41) am the only child of B. In July 2018, landlord offered all tenants the Permanent Alternate Accommodation Agreement (PAAA) to sign because MCGM had issued IOD in May. We agreed to register paaa of flat no. 301 jointly in name of G and B and another paaa for flat no.302 jointly in name of G and A1. Landlord took notarized NOC for this on Rs 500 stamp paper from A1, A2, A3 and from B (via his POA). In parallel family also created two undertakings/release on Rs 100/- stamp paper and duly notarized. that B (signed via his POA) will release interest obtained now or in future (via gift or intestacy or will) in the A's future flat (302). And A1, A2, A3 signed a separate undertaking to release interest obtained now or in future (via gift or intestacy or will) in B's future flat (301). No money has exchanged hands in this entire arrangement. Registration of both the PAAA happened in Sep in Vikhroli. The undertakings were not registered at this time. G and B both sent their POA to subregistrar office and A1 personally. However due to confusion B's POA holder missed to pickup the undertaking in exchange. So now A2 is in possession of both the original undertakings. Now A2 is not handing over one of the undertaking to B as had been agreed earlier. Now A2 is also pressuring G to giftdeed her share in flat 301 to A2. G is old and helpless. G lives near A2. G wishes 301 to B and 302 to A1. I have phone pictures of both the signed undertakings. PAAA has identified plot number, plot address, flat number, floor and ownership basis but also says that tenancy relationship persists till new bldg is ready and also says no sale or transfer can be made without NOC of the landlord. Landlord is neutral party. Only I and A2 are knowledgeable in English and official matters. All signatures of B are via POA because B is not in Mumbai. Is it now possible to petition the Small Causes Court of Mumbai to alter the PAAA signed in Sep 2018 and get a court order to insert all 3 names G, A1, B jointly in both the flats as per the consent decree ? Any other option ?
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
Sir the undertakings signed for future gift or will are not valid per se as there can be no agreement for will and gift so legally all will have interest in both the properties. So still the interest is not released and there has to be registered relinquishment deed for same or gift deed.
So technically all the legal heirs have interest in both rte flats . So a suit.accordint to jurisdiction pecuniary can be filed for creating intrest of all legal heirs in the both the properties.
It is necessary to peruse all documents cited by you to advice
2) do you have copy of undertaking signed by A
3) if Ais not handing over undertaking to you then legal notice should be issued to him to hand over the undertaking
4) please note that tenancy rights cannot be bequeathed by will not gifted
1) If PAAA is registered with registrar than it can be happened to make alterations by way of Rectification Deed and get signed by all partners than you can registered it with registrar.
1. this is not a dispute between landlord and tenant - as you said landlord is a neutral party - so you cannot move the Small causes court
2. this is a dispute between uncle and nephew ie inter se dispute between family members
3. the undertakings given by legal heirs of A to Son B and by B to legal heirs of A are of NO consequence - due to the doctrine of spes successionis (doctrine of presumptive heir)
4. for example - G is a co-owner for both new flats. When she passes away, her right in the flat will devolve on the legal heirs. So legal heirs come into picture and can claim right only after demise of owner. Prior to demise of owner, the future legal heirs are only presumptive heirs - i.e these future legal heirs may or may not inherit - because the owner in her lifetime can dispose of her property by any mode of transfer like gift or may even Will it to a complete stranger - in that event the right of the future legal heirs or presumptive heirs is lost and they cannot claim
5. if now your cousin is creating issues, then instead of having names in the PAAA as per consent decree, B can simply request G to make a Will of her 50% share in new flat to name of B so that none of the legal heirs can claim in G's share in the flat in which B is a co-owner.
6. also if the new flat is allotted prior to demise of G, then she make a gift deed of her 50% share to B
7. G can also make an affidavit releasing her 50% share in proposed new flat in favour of B and submit this affidavit to landlord so that he can allot the new flat and give possession letter in exclusive name of B for 301
It would be better for you to take proper legal guidelines by showing complete files of your case to an advocate so that you can take a right path to handle your issues. Vague answers will not give you the exact relief .
the undertakings signed for future gift or will are not valid, there can be no agreement for will and gift so legally all will have interest in both the properties
So a suit according to jurisdiction pecuniary can be filed for creating interest of all legal heirs in the both the properties.
Take legal advise from your nearest advocate show him all tha documents related to your case which will help you better
Once it was agreed before court by all concerned, then there is no question of any agitation towards this at this stage.
The decree passed by the small cause court has not been challenged by any party hence no case on the same lines would be tenable
I have a phone picture of the undertaking signed and notarised by A1,A2 and A3. This was sent to me by A3. However the original is with A2 and not handed to our family as originally agreed. The essence of the undertaking is that A1 A2 and A3 will not claim and promptly release any interest in 301 obtained in future and B in exchange has the exact same undertaking to not claim and release any interest in 302 obtained in future. It was a preemption to any WIlLL, Intestacy or GIFT made by G without knowledge of other parties or even her own knowledge The concern now is that A2 can get any will signed unknowingly by G by keeping the date blank for now with any two colluding witness signture. This can then in future be shown as the most recent WILL of G. G is bedridden due to age and health and cannot go to subregistrar office. Even registration of PAAA by G and also B both via two POA holders. It is unclear if law permits any WILL or GIFT can be made at this early stage of redevelopment when just flat number, floor and plot number is known but first CC not yet obtained by builder. Does G have ownership giftable willable rights based on the PAAA or everyone still has only tenancy rights till Occupancy certificate is obtained? I will ask landlord if they will accept a notarized release from G in favor of the other co-party in the paaa. (301 paaa the two parties are G and B). (302 paaa the two parties are G and A1). Does this have to go to subregistrar office again ? My last resort urge to move court is not to challenge the decree of 2013 but rather to obtain court order to alter the paaa to add all 3 names in both the paaa to match the decree. By adding all names in both , all signatures will be required in future to mutually release each other and everyone will be compelled to be fair. I fully realize I will have to hire advocate to resolve this matter. However trying to understand possible options first.
1) landlord will not accept notarised tejeSe deed
2) it has to be duly stamped and registered
3) will or gift cannot be made of tenancy rights
4) contact a local lawyer
Will can be made stating that all the interest and right in the immovable property is given to so and so person.
Sir the notarised deed wont do there has to be registered relinquishment deed done and stamp duty need to be paid.
Sir if all mutually register the relinquishment deed or a family settlement then it would be settled fairly though otherwise a suit has to be instituted in the civil court seeking declaration of rights on both the properties.
If other than G, B and A1, anyone is claiming any share in the property without any rights in it, then it may be illegal and invalid.
G can very well bequeath the property to which he has rights now and anticipating rights in future, because the Will can be enforced only after his lifetime whereas he cannot transfer the non-existent property by a registered gift deed during his lifetime.
Whether approaching court for including all the three names ins PAAA may be entertained or not has to be discussed with a local advocate based on the documents in your possession by an opinion on it.
In continuing the above, since the original tenant in whose name rent receipts were issued from 1971 to Aug 2018 was always grandFather's name. Rent receipt was never transferred in grandMother's or anyone else's name. Even the PAAA has wording that original tenant was grandFather and the remaining (G,A,B,C) are known legal heirs of grandFather. GrandFather died without any WILL. So my question is that is this co-ownership rights in the paaa considered "self-acquired" property of grandMother or is it considered "ancestral intestate inherited" property of grandMother. My understanding is that only a "self-acquired" property can be further freely gifted or willed away. I am really trying to understand the self-acquired aspect of law if grandmother (G) even has any legal rights to gift/release or bequeath her 50% share as co-owner in the future flat ? My concern here is that A2 can coerce,influence G into signing anything and find two colluding witnesses. If , based on ancestral intestate inherited property law, grandmother (G) does not even have the legal rights to Gift or Bequeath, then I do not have to worry about coercive action by anyone. At what point in the timelines of redevelopment of pagdi homes , do the parties (tenants) who are named as owners or co-owners of the future flat (flat no, floor, floorplan, amenities, plot etc all identified) in the PAAA (permanent alternate accommodation agreement) become actual owners to be able to gift or bequeath ? Does PAAA give such rights from the day it has been registered (Sep2018) OR only after the Occupancy Certificate (3-4 years from today) OR only after Society is formed (4-6 years from today) ? For bequeath wishes in a WILL to be valid, Does a testator (G) must be a vested co/owner of the property on the date the WILL was "written" OR is it also valid if the testator becomes co/owner later .e.g on or before the date of execution/probate of the WILL ?
1) it is not ancestral properties of grand mother
2) it would be her inherited property
3) please note that tenancy rights cannot be bequeathed by will or be gifted
4) testator must be owner of property he wishes to bequeath
This shall be inherited right though shall be as good as self acquired it won't be ancestral rights.So she can freely gift her share of the property.
She can will,gift sale her share on her own without requiring any consent.
Sir right as after PAAA is registered, right is created same can be gifted
If there is any future interest in the property it can be she becomes owner after writting will same.would be valid.
1. your grandfather was original tenant of the 2 1RK in the old building
2. then there arose certain disputes between landlord and legal heirs of grandfather, post demise of GF
3. the dispute was amicably settled whereby the legal heirs of GF were accepted as tenants
4. the building then goes for redevelopment and landlord signs PAAAs with tenants
5. 301 is by mutual consent of all parties agreed to be allotted to GM and B and 302 is agreed to be allotted to GM and legal heirs of A. Though in consent decree GM, A and B have been accepted as joint tenants
6. in my opinion, so long as the new flat with OC is not handed over to the tenant, the relationship between the parties continues to be that of landlord-tenant
7. this is because the tenant continues to pay the notional rent to the landlord pending allotment of new flat and in lieu of that rent the landlord continues to issue rent receipt to the tenant
8. under law a property which is held on tenancy basis can neither be gifted nor Willed
9. so prior to the allotment of new flats, even if A2 manages to obtain a Will from GM therein bequeathing her share in your flat to A2 - that will be of no consequence - because tenancy rights cannot be Willed
10. similarly a gift deed cannot be made
11. a Will or gift deed can only be made by grandmother in respect of her undivided share in both the new flats only once the new flats are allotted with OC and not prior to that
12. i see no logic in having all three ie GM, Legal heirs of A and B as joint allottees in the PAAAs for the 2 new flats - because there too the GM will have 1/3rd undivided share which as per your apprehension can be Willed or gifted away to A2
13. So unless and until the new flats with OC are allotted, the relationship of landlord tenant will continue and thus the tenant cannot make any Will or gift deed of his/her undivided share in the new flats to be allotted
14. as to the declarations executed by both parties in favour of the other - so long as the owner is alive, his/her legal heirs have no right whatsoever in the property owned by owner and thus any such declaration made by the 'to be legal heirs' giving up their right in the property which they 'may' inherit after demise of owner - is of no consequence and useless
15. so say the GM dies, then B cannot show the declaration executed by legal heirs of A and say that - look you'll had executed this declaration and so now you do not have any right or claim in the half share of GM in 301-
16. the declaration is not at all binding on the legal heirs of A as that was made during the lifetime of GM
17. Had such a declaration been made after demise of GM then it will be binding on the legal heirs of A
This will not be self acquired or ancestral property, this is rented proeprty now going for redevelopment, that is all.
The legal heirs of deceased grandfather can sign the papers.
The PAAA can be entered jointly by all the legal heirs/successors in interest with the developer, and all the legal heirs will be having rights over the property, until they do not nominate one among them to become the owner of the same.