1) You can make tripartite agreement including all three parties names in it. X, Y and Builder.
2) If you want such type of sale deed, I can draft for you.
3) There is no harm to purchase such property from X and Builder.
Death of a co-owner of a property
Father and his Son(X) buys a property(flat) with builder in prelaunch phase in Bangalore(co-ownership, but I dont know type of co-ownership) . Father passes away 10 months ago from now, property is ready now but unregistered and unoccupied. X is saying that Y is his real brother. If i buy this property, first registration will happen on my name for this unit. How to fully protect my interest while buying this property, so that no ownership related dispute arise in future? Seller is from Hindu religion(clarifying to help understand which type of laws would be applicable). As a process, assignment agreement will be executed among builder, me and seller. And post that, property will be first registered on my name. 1. Is it process safe for me to follow in order to completely safegaurd my interest?: Get declaration from legal heirs of Father per Family tree(issued by Taluk Panchayat official) forfeiting their share, so that I can proceed with assignment agreement with builder and X. X has agreed to bring PoA of Y to sign as a witness in sale deed(sale deed will happen with me and builder as such). 2. Is it possible that father would have executed will outside family to transfer his share of this property? How to protect my interest with regard to it? Should I insist for Probate or Successor certificate in addition to following above process in point 1? 3. Any other advise for this transaction before I proceed with it?
Asked 7 years ago in Property Law
Religion: Hindu
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14 Answers
Tripartite agreement would be entered into between builder , you , X and legal heirs of father
2) father can execute will in favour of any third party too
3) it father left a will insist on probate of will
4) if there is no will then letters of administration from district court
5) please note succession certificate is only for movable debts and securities
Dear Sir,
My answers are as follows.
1. Is it process safe for me to follow in order to completely safegaurd my interest?: Get declaration from legal heirs of Father per Family tree(issued by Taluk Panchayat official) forfeiting their share, so that I can proceed with assignment agreement with builder and X. X has agreed to bring PoA of Y to sign as a witness in sale deed(sale deed will happen with me and builder as such).
Ans: Get first property registered in the name of X. Then get a sale deed from X on which Y must sign as consenting witness.
2. Is it possible that father would have executed will outside family to transfer his share of this property? How to protect my interest with regard to it? Should I insist for Probate or Successor certificate in addition to following above process in point 1?
Ans: You may check the Registration Office records that is EC about any encumbrance is there on such property. Further check in Sub Registrar office as to whether Father of X has left any Will in favor of any body.
1. If the legal heirs of father relinquish the right over father's share and sign the sale deed for confirmation of same to you then there won't be problem. Fort witness POA cannot be used X can use Y POA to sign confirmation on sale deed witness can be another person.
2. Sir it might be case father may have made a will so to.safeguard against same it would be better they get probate of will if any or X sign sale deed along all legal heirs to you as seller and give indemnity bond stating no will is there and if any issue they all sha indemnify your damages. As succession certificate is for movable assets.
3.i would advise you instead of relinquishing right ask all legal heirs of father that is X and Y and there mother if alive to sign sell deed as vendor and not witness .
1. X is saying there is no will. However, what if he himself doesn't know about will being there? How to safe-guard my interest in future to protect any damages? I should not get any trouble when I sale this property in future after several years... 2. Both X and Y are NRIs. Besides special law of TDS while dealing with NRIs, any other legal advise for me to proceed with this transaction? For NRIs, what type of PoA from X should I demand for? Would PoA document be part of my registration docs permanently? 3. X is sending his wife with PoA of himself to Bangalore to sign a MoU(sale agreement between buyer and seller) . Tripartite agreement with builder will be signed then after. X will travel then after for execution of sale deed. Should I insist on Y also being part of this MoU? Is it ok if both X and Y gives PoA to X's wife for this MoU and assignment agreement, and X travels to Bangalore at the time of executing sale deed. 4. Any problem if Y gives PoA to X's wife instead of X? Any special laws on validity of PoA in blood relations?
Asked 7 years ago
1.) You should make tripartite sale deed means all rights will be included in it and can easily transfer title rights on your name.
2.) No matter for you, NRI tax liability will depend upon seller and not on buyer, so you don't worry.
3.) Yes, ask both of them to give POA to X's wife then you will able to complete sale deed in India.
4.) No matter, if both legal heirs know the property needs to sale to third party, by way of POA.
If you want we can make both sale deed and POA documents at reasonable rates.
1. X can give an indemnity bond and there can be a indemnity clause in the sale deed.
2. Yes POA would be part of the registration document. POA should be notarised in foreign country then verfied by Indian consulate in that country, further once POA in India it should be verified/stamped by jurisdictional SDM/DM.
3. Yes Y has to be part of the MOU. Yes Y and X can give POA to wife of X to enter into MOU.
4. No there wont be any problem. There is no stamp duty for blood relation but since in our case there is MOU only and stamp duty would be paid once by you there wont be any issue.
1. Make a publication in the newspaper that you are purchasing the said property, if there is any claim on the same then you may be intimated.
2. No POA document will not be a part of the sale deed, but in the sale deed mention of POA will be there.
3. Yes you should insist that Y shall also be a part of the MoU, in order to avoid future disputr
No there is no special law with regards to the validity of PoA in blood relation
Insist that letters of administration be applied for by son on demise of his father
2) it should mention father 50 per cent share in property
3) specific POA has to be executed. It should be attested before Indian consulate
4) it would be enclosed to registered agreement
5) insist that Y be party to agreement
6) POA can be given to blood relative otherwise higher stamp duty is payable
With reference to Advocate Ajay Sethi's latest response, Bank Of Baroda home loan Panelist lawyer is suggesting same process except for 1. Instead of applying for letter of administration, she says Family tree issued by Taluk Panchayata is enough to establish legal heirs. Father's will(doesn't matter exists or not) doesn't come into picture because property is not registered on anyone's name yet. Is it correct? Would it be because Karnataka having different laws, or should I insist for indemnity bond?. Does this process provide full legal safety net for me, and also ensure completeness of title of property even when I were to sale it in future? X has agreed to get me Y's PoA, and to keep Y part of MoU, Assignment Agreement to be done with builder and in sale deed. 2. Should sale deed happen between me and builder, and X and Y be witness given builder has process of Assignment agreement, or sale deed should be among me, builder, X and Y? Is assignment agreement same as tripartite agreement(before executing sale deed) we are referring to in this discussion thread? 2. X and Y are in USA. Father's death certificate would be from Kerala. Family tree would also come from Kerala. Transaction and registration will happen in Bangalore. Any special legal precaution should I make just in case there are different interpretation of laws when documents from multiple states are on table? 3. If Y has a wife and two children, do I need signatures from Y's wife as well or Y's PoA is good enough? 4. For Y's PoA, should I insist on specific format of document? 5. Could these processes and interpretation of laws very from state to state? Or all laws are applicable pan India?
Asked 7 years ago
1) since father has died in Kerala instead of family tree from panchayat better apply for and obtain LA from district court
2) indemnity bind indemnifies you in case any claims are made
3) assignment agreement would protect your interests
4) you don’t need consent of Y wife and children
5) get specific POA drafted by local lawyer
1. Yes it correct only right of father is there property is not registered still. For safety insist on the indemnity bond. Yes if all legal heirs sign the sale and MOU it is complete cover and proct your rights.
2. Y should be main party along X in sale deed as confirming party along you and builder in pursuant to there agreement with the builder,
3. No there wont be any separate implication.
4. Y POA is good no sign from children and wife required,
5. POA can be drafted by an Advocate covering complete aspect.
6. Laws will be similar in India only duty shall be different depending on state.
The father and the son have entered into a sale agreement with the builder, in the give circumstances, the legal heirs of father should give their consent to sell the property through tripartite agreement along with the co-owner and the builder.
The agreement should be properly executed so that the legal heirs of the deceased do not make a claim at a later stage.
If you suspect the same then you can ask the legal heirs to execute an indemnity bond indemnifying any loss in this regard in future.
You may obtain a proper legal opinion from a local lawyer for all such further issues.
1. You can ask them to execute an indemnity bond to indemnify the loss in future in this regard.
2. The NRI purchaser can execute a POA from that country itself in favor of any of his close relatives, who can execute the tripartite agreement o his behalf.
3. The POA given by a person in foreign country and that of a person residing in the local will differ, though they both can give POA to the wife of X.
4. There is no problem in that respect.
1. The l;aw is common at all places. It is uncommon among the banks offering the loan because they will be exercising abundant caution while granting loan.
The POA arrangement is nothing strange nor unpopular, there is nothing following that procedure provided it is authentic.
2. The sale deed will be executed by the builder in your favor, the other parties may sign as a witness if you insist otherwise it is not necessary especially when the tripartite agreement has been executed among the parties to this .
3. Y's POA would be sufficient.
4. The regular format may be followed.
5. Law is common across the country but the procedures may differ from one place to another.