Well if is not clear how you made your elder brother heir of the whole building as he along with you is co-shareer only.
Now for smooth recognition of share of all if you execution of a deed of partition ant registering is best suited to all of you.
Gift Deed - property transfer
Hi, We are total five siblings (3 brothers and 2 sisters) belonging to a Muslim Family. All are married and settled. We have a building which was built by Grand father and we brothers are staying there on each floor. My Grandfather has 3 daughters and 1 son (my father). This building came to my father by inheritance. Due to my dad sudden death, there was no will created. We all (brothers, Sisters and mother ) had made our eldest brother the legal heir of this building 15 years ago for smooth legal operation, a Heirship Certificate issued by the IInd Joint Civil Judge, Senior Division and he is recognized as heir and owner of the property. I am staying in a flat under the same said building with my mother and I would like to get the registration done now as I don't have any legal document of the same flat where I am currently staying at. I want to know can I ask my brother to make a gift deed which can be registered and then I can become the owner of the flat. Will this gift deed be legal and valid? Can my two sisters and other brother challenge this gift deed?
Asked 10 years ago in Family Law
Religion: Muslim
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12 Answers
1) On your father demise property would devolve on all legal heirs as per your Muslim personal law
2) nether you nor other legal heirs have executed deed of relinquishment wherein your brother becomes absolute owner of the building
3) mere issue of legal heir certificate would not make your brother absolute owner of the building
4) your brother cannot execute gift deed in your favour for flat in building
5) it can be challenged by your sisters on grounds that they have not relinquished their shares in the building
The building has 2 and 1/2 floors and total 6 flats and 2 shops. There were some tenants on rental basis in the building, we have sold 2 shops to them on ownership basis. That time our dad was not there so we all (brothers, sisters & mother) have given the full permission to my brother and made him legal heir and owner of this building so that we can do this transaction and sell the shops to tenants. Also I have also done a sale deed earlier for a flat (earlier a tenant used to stay) in 2009 with my brother in the same building and done the commercial transaction by paying the money to tenant to vacant the place and paid some money to brother (the payment receipt is included in the sale-deed). Also got that sale deed registered. I have this flat on rent. Now there is another flat in the building which I want to get the registration done. I am currently staying in the flat with my mother. How do I get the registration done for this flat now? Sale-Deed with showing money transaction or Gift-deed?
Asked 10 years ago
1) sale of flat to you should be with the consent of all legal heirs
2) consideration should be clearly mentioned
3) don't go in for gift deed
Sale deed is better option.
This is an ancestral property inherited by your father from your grand father, who also dies intestate. Since, the heirship certificate has been issued by the II Joint Civil Judge, Senior Division in favor of your brother, it appears that your mother, all brothers and sisters might have relinquished their respective stake in the property through the relinquishment deed in favor of elder brother. For all purposes your brother is the owner of the said property and he has a right to transfer any part of the property through sale deed or gift deed as the case may be in your favour or to any of your siblings.
1. If the ownership of the building constructed by your grandfather has been transferred to your brother he can convey the ownership of the flat to you by executing a sale deed or gift deed in your favour.
2. Your other siblings can challenge the gift deed if your brother does not have the legal authority to convey the ownership of the flat to you. Since we have not perused the court order we cannot comment on the nature and magnitude of rights which have accrued to your brother.
3. If you go for a sale deed the stamp duty will have to be paid whereas in case of a gift deed among the blood relatives there is no stamp duty (to the best of my knowledge) in Maharashtra.
What if I get the release deed done for this flat and get the signed on this from my brothers & sisters. Also register this release deed. Is it better and safe way to get the ownership of this flat compare to a Gift deed or sale deed?
Asked 10 years ago
1) sale deed for consideration is the best option .
2) tomorrow any legal heir moves court it can be shown that flat was sold for consideration as duly reflected in sale deed .
3) it is your case that brother is owner of property where is question of release deed then by other legal heirs
1, A release deed and gift deed will produce the same effect i.e transfer of ownership.
2. In case of a sale deed it has to be accompanied by consideration.
3. You have to take the call.
Instead of gift deed or sale deed or release deed, all you siblings can mutually agree to family settlement and partition the properties and register the partition deed which will make each one the owner of the schedule of properties so allotted to each individual in the said partition deed, this deed will become the document for all future transactions in respect of the individual properties.
The mutual agreement will include all aspects of the properties i.e., the proportionate share to each individual or anyone to be compensated with money in lieu of his or her share in the properties etc, this can be achieved by everyone cooperating and deciding together. This will be easy method and cost saving as well.
1. How did you make your elder brother as the sole legal heirs when there are several legal heirs of your father?
2. What document did you sign for making him the sole owner of your father's property?
3. Was it a POA executed and registered by all other brothers and sisters?
4. If not, then your brother can not be the sole owner of your father's propety foer ahich your sisters can certainly lodge their claims if your brother executes and registers a Gift Deed in your favour,
5. If your elder brother had the POA executed and registered by all his siblings then he is entitled to register the said gift Deed in your favour.
1. If your brother has got POA signed by all his siblings then he can convey the title of the said flat to you,
2. It is convenient to register a Gift Deed in your favour.
1. If all your brothers and sisters agree, you can get a Settlement Deed executed and registered in your name,
2. This will be the best way to get the ownership of the flat registered in your name.