My Mother and I (Her Unmarried Daughter) were living in a pagdi property since pas 40 yrs. Mother has 2 Children: A) Me i.e Unmarried Daughter Age 60+ and B) 1 Married Son (Age 60+) Living abroad since past 20yrs The Landlord had created an Unregistered agreement for this pagadi property in My Mothers name. Now My Mother Died 5 yrs back. I use to live with mother till her demise and still continue to stay in the same pagadi property.However the son was living abroad before and after mother demise. Post Death of Mother, the land lord is giving rent receipts in Combination Name of My Demised Mother & Me (i.e Unmarried Daughter). Question is : A] 1) Can I as a Unmarried daughter sell this pagadi flat without obtaining permission of my brother living abroad. 2) Does my brother who was living abroad for nearly 20yrs before and after mother death & till date) have any legal right in the pagadi property sale. B] How will this Pagadi Sale Transaction take place i.e: 3) Is Registration of this property mandatory, Considering that this is a Pagadi Property and being sold and bought as a pagadi property (This Property is Located in Mumbai) 4) Does Circle Rate/Ready Reckonor apply to this Property, for Calculation of Transaction value & Stamp duty, if they are applicable ? 5) I am also being suggested that since this is a pagadi property, no registration is mandatory & ready recknor is Not applicable.Is this True. 6) The 1st Unregistered agreement between my mother and landlard does not specify flat area.This how do we consider the area for selling the flat 7) If Property required registration & payment of Stamp Duty as per circle rate, then are there different ready reconer/circle rates for Pagadi Property & other properties ? Plz Reply asap
Dear Client,
Since the rent receipt was issuing in both names, so mother 50% holding will dribute in you and brother. But this is not self acquired property but rented property so inheritence of tenancy will only survive and i.e. in you only not in brother. Now you are single tenant and occpant not brother.
You can sell.
No
Sale by regsitered deed only permissible.
Yes.
Registration require if you sell the property, for transfer in your name - rent receipt in your name now only not mother.
1) on demise of mother landlord has transferred flat in your name rent receipt are being issued in your name and you are recognised as tenant by the landlord
2) you an sell property without your brother consent
3) you can find buyer for the property and tripartite agreement can be entered into between you , buyer and landlord
4) in alternative you can surrender your tenancy rights to landlord and obtain around 67 per cent of market price . Landlord takes balance amount
5) landlord will enter int fresh agreement with the buyer .
6) agreement should be stamped and registered
7) registration is mandatory in Maharashtra
8) rent receipt would be mentioning your carpet area of flat
9) as far as stamp duty rates are concerned make enquires with registrar office
1. If the rent reciepts on ground of dependency are trasferred in you favour you can transfer same without NOC of the brother.
2. Since brother was not living in the house and no right of his is created he cannot claim same.'
3. Transfer of tenancy shall be there you are not owner sho cannot sale the property but can transfer the tenancy for that registered agreement is required.
4. The duty shall be on the transfer value.
5. Yes it is not compusoray as only tenancy will transfer but it is better to get the agreement registered.
6. You can get same measured and valued by goverment approved valuer.
1. under rent act, if original tenant dies, then there are 2 types of persons who would become entitled to tenancy rights:
i. the family members of original tenant who were living with the tenant at the time of his demise in the tenanted premises OR
ii. if there are no such family members then the legal heirs of original tenant
2. your mother was original tenant of the premises
3. at the time of her demise only you were residing with her in the premises as a family member
4. therefore you will get preference over other legal heirs of your mother i.e. your brother who is living abroad
5. so under the definition of tenant as given in the rent act, only you are entitled to tenancy rights of the premises and the rent receipt should be transferred to your sole name
6. however the landlord in order to protect himself from any dispute that may be raised by any legal heir of original tenant, would require you to submit the NOC of your brother in order to transfer rent receipt in your name
7. also when you go to sell this pagadi flat, the buyer would also require NOC from your brother
8. so even though under the rent act, you alone are entitled to tenancy right of the premises; for the purpose of transferring the rent bill to your name and for purpose of selling the flat, the NOC of your brother will be required for protection of both the landlord and the buyer
9. if your brother is in good terms with you then he can give his NOC affidavit in your favour
10. if your relations with your brother are not cordial then unfortunately you will have to file a declaratory suit in the Small causes court at Mumbai to declare you as tenant of the suit premises
11. in this suit you will have to make your brother and any other legal heir left by your mother as well as the landlord as party defendants
12. such suits take several years to resolve and given your age I doubt you would even survive to witness the final outcome of this suit
13. so my advise to you would be to obtain NOC affidavit from your brother and if he is not willing to give such NOC then offer him some compensation for giving NOC
Coming to your queries:
Registration:
the onus of registering the tenancy agreement is on the landlord and not on the tenant.
Stamp duty:
you can put whatever agreement value you wish and as agreed between you and your buyer in the tenancy agreement. The stamp duty payable on such agreement will be 5% of agreement value or market value as per ready reckoner, whichever is higher
This is not an ownership property. So it is not necesary to mention the circle rate in tenancy agreement. You can even state a value lower than circle rate in tenancy agreement but stamp duty will be payable on the circle rate only if its higher than agreement value
Flat area:
The flat area can be obtained from the BMC inspection extract and stated in the agreement
The area can also be found in the Annexure A of BMC which was given to all owners of buildings alongwith demand notice to pay property tax as per new capital value system
Different circle rate:
For purpose of computing stamp duty, there are no separate rates given for ownership and pagadi flats. The computation and rates for both are the same
Without consent of your brother you can not sell the said property.
As per law every legal heirs have rights in parents property.
In Maharashtra pagdi property registration is mandatory.
1. Permission from the brother has to be obtained
2. Yes
3.Get in touch with a local advocate to know about the procedure and rate for further sale of the said property.
Regards
1) Yes, you can sell the flat as owner has given receipt on your name. Still your brother do has rights in it as legal heirs. If you want to take permission from him you can make relinquish deed.
2) Your brother has rights in the flat.
3) Yes , registration is compulsory.
4) Yes.
5) No. Its not correct.
6) Better you apply for measurements of flat in BMC, BMC authority will provide actual square feet of flat and update same in the BMC tax receipts.
7) There is no different ready recknor or circle rates. You have to sell as per what market rate are going in your area and ask for the same price, its buyer headche to implement same amount in the sale deed. Because buyer has to pay stamp duty and registration accordingly.
The amount which you will be getting from selling the flat 30% amount you have to give to Owner for transfer of ownership under pagdi system.
The pagdi property is not a regular property that you may have to follow the strict law or rules as per transfer of property act.
Hence there wont be any bar on you to sell the pagdi system property to the prospectiove buyer.
If one wants to sell his home for Rs 9 lakhs, he will have to pay Rs 3 lakh of the amount to the landlord. The purchaser of land in a pagdi system is said to be atenant and has limited rights because a very nominal rent is collected by the landlord and receipt given accordingly.
Registration of sale deed is not necessary for selling pagdi property.
The tenant or any person acting or purporting to act on behalf of the tenant to claim or receive an sum or any consideration, as a condition of the relinquishment, transfer or assignment of his tenancy or any premises;
No circle rate or guidelines value will be applicable for this sale transaction
Yes it is true that registration is not mandatory
In my above question 50% of Lawyers (Yogendra Singh Rajawat,Ajay Sethi,Shubham Jhajharia,T Kalaiselvan) are of the view that my brother has No rights on the Pagadi Property due to RCA Maharashtra, where as 50% lawyers (Yusuf Rampurawala,Mohammed Mujeeb,Anilesh Tewari,Ganesh Kadam,) are of the view the Hindu Succession Act over rides the RCA and thus the brother has rights in the pagdi property , even if he is living abroad. Kindly refer to WRIT PETITION NO. 1853 OF 2014 Urmi Deepak Kadia VS State of Maharashtra Kindly Clarify who and what is correct plz.
Though the opinions of lawyers may from each other you should take them as guidance only and proceed on the basis of best opinion which you may feel it as right.
You may discuss with your own advocate on all such further issues.
Sir according to writ petition also rhe RCA will prevail as tentant and deemed tentant that is any member of the tenant's family, who, when the premises are let for residence, is residing or when the premises are let for education, business, trade or storage, is using the premises for any such purpose with the tenant at the time of his death or in the absence of such member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the Court, will step in and will only have right.
1) provision like section 7(15)(d) therein is inserted to enable the landlords after the death of a tenant to deal with a single member of his family and not to join issues with the heirs and legal representatives.
2) Eventually, it is to enable the landlord to recover the rent and other charges in respect of the premises and equally for the protection of the tenant's family that such clauses are enacted. The State legislature never intends to affect the rights under the general law and particularly the right to succeed to the estate of the deceased.
3) in the judgment cited b6 you Bombay HC has held nothing in clause (d) of section 7(15) of the MRC Act interferes with the rule of succession enacted by the HS Act.
4)brother can claim rights in Pagdi property
I never said your brother has any right over the pagdi property
Kindly read the response carefully
Brother was not living with original tenant in the tenancy premises at the time of her demise.
First preference is given to family members who are living with tenant in the premises at the time of her demise
So tenancy right devolves on you
But landlord will insist for noc of brother for transferring rent receipt to your exclusive name
If landlord is not insisting then its good for you and he can recognise you as exclusive tenant