Mother is at liberty to sell her share in property
2) she does not need consent of other legal heirs for sale of her share in property
3) she can execute gift deed for her share in property
Division of property after fathers death
My father and mother had equal share in a property , father has died without a will . i have the below questions now can the mother sell her share which is 50% as per the documents or she need the permission of all the legal heir. if mother want to sell her share only what is the procedure.
Asked 3 years ago in Property Law
Religion: Muslim
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13 Answers
In the jointly owned property, one spouse can sell the share pertaining to that spouse even in the event of death of another spouse but that spouse can sell the undivided share in the property and the buyer can file a partition suit to take possession of his share in the property provided the buyer is willing to buy the undivided share in the property.
The co sharer can sell his undivided share in a joint property even without the consent of other co sharers ..
If she wants to sell her undivided share, she would not need any permission from any legal heir.
In muslim law, the shares of the legal heirs have been fixed by the sharia law. One cannot divide share on his own.
mother is 50% co owner
hence she does not need the consent of the legal heirs of the father
also mother has inherited a fixed share from the 50% of share of late husband and hence her shareholding in the property increases to that extent
it will not be easy to find a buyer who would buy only 50% share of your mother [if the property is a flat]
Yes, your mother can sell 50% share, if she is original owner. No need to take permission of other legal heirs if it's empty land property. If it's flat or bunglow then need to take NOC of other legal heirs.
She is entitled to sell her 50% share by herself however for the rest 50% share which belonged to your late father, all your fathers legal heirs will have to give a release deed in favour of your mother to sell the property.
1. Equal Share in the property means the property is "un-divided /non-partitioned" property. Such property CANNOT be sold without Partition Deed or Partition Decree from a civil court.
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Dear sir/maam,
Your mother can sell a property if she has purchased the same from and out of his own funds and you can not question the same. But if in case where the property came through succession after the death of anyone of your family members and where she got such right in it, she can not sell it without your consent.
1) The mother can sell the property of it is registered in her name. She does not need to seek the permission from her adult children.
2) The buyer will have to title as the mother it's the true owner of the property after the husband has transferred it to her through a registered deed.
But if in case where the property came through succession after the death of anyone of your family members and where she got such right in it, she can not sell it without your consent.
If the property is on your mother's name, then she need not take anyone's permission or consent to dispose or alienate or transfer or sell the same to anyone of her choice as per he desire.
A property in the name of a married woman shall be her own and exclusive property in which nobody has any claim or right.
She can do it by a sale deed.
10 Things To Keep In Mind While Drafting A Sale Deed
Owning a great house has always been your dream. It is not everyone who gets close to making it a reality. Now that you have come closer to buying that perfect home of your dreams, a place where you vision yourself, watch your children grow, retiring peacefully and doing everything that you wanted to; keep some things in mind so that your visions come true. You may be a young buyer aspiring to get that perfect apartment or a seller who intends to dispose of a smaller property in order to graduate into a larger one. There is no denying that a perfect Sale Deed is what it takes to seal the deal for your benefit. Yes, It is true that there are umpteen documents that are required for a sale to happen, but it is the Sale Deed that you create based on your particular needs. Let’s check out how to draft that perfect document which transfers the ownership of a property in your name.
1. Do not use a copy-paste deed
This is the most important aspect of drafting a document: Do not let a non-expert prepare your document. It is a common practice for buyers to visit DTP centers near Sub-registrar offices and use agreements drafted for other parties by changing the names and property details. This is a dangerous trend since every property is unique and every case is different. The applicable laws change from time to time. Hence, it is a safe bet to leave it to experts, unless you have sufficient expertise yourself.
2. Introduce the document and parties correctly
The title may be either ‘Sale Deed’ or ‘Deed of Sale’. It is different from the agreement to sell where the individual terms and conditions of the sale are mentioned. Details of the parties should be mentioned including full name, addresses, age and occupation if possible. Details of the parties are required to show that they are not barred from entering into a contract under the Indian Contract Act, 1872. Did you know that agreements with minors and insane individuals cannot be enforced by law? So it pays to verify the age proof if you suspect that the property ownership lies with a minor. Even a power of attorney granted to a major by a minor is not valid.
3. Connect it to the Agreement to Sell
A proper mention must be made to the detailed agreement to sell drafted between the parties where the seller agreed to sell and the buyer agreed to buy. It also contains all the important terms and condition based on which the deed of sale is drafted. The sale deed is usually a brief document and the detailing is given in the agreement to sell. Both are interconnected and interdependent. Therefore a proper description of the agreement to sell should be given including the registration details of the same. The stamp duty paid on an agreement to sell is usually adjustable on a sale deed.
4. Describe what is being sold, everything about it
The key aspect of the sale deed is the property. Every bit of detail of the same should be recorded in the sale deed starting from the extent of the property, the survey number, the address, the construction details including roofing, number of rooms, parking facilities, borewell if any, boundary details, etc. The sale deed should mention how the property came under the ownership of the seller: for example – vide a sale deed dated xx-xx-xxxx.
5. Clear title matters
The property to be sold should have clear and marketable titles. The ownership must be absolute and not conditional. If it is a jointly owned property, all the sellers need to be present for registration of the sale deed. The property should be free from all encumbrances, liens, etc. The property should not be liable to be attached by any authorities. All facts regarding the same should be mentioned.
6. Show what you paid, and how
Consideration is the monetary compensation that a seller receives in exchange of his property. We advise you to state the exact amount and to pay the recommended taxes for your own interests, however tempting it may be to understate the cost to save some tax amount. The advance amount paid while making the agreement to sell should be mentioned as well. How you made/received the payment also matters. It may be through cheque, online transfer or through cash. If cheque, mention the cheque number or the transaction ID, if online transfer.
7. Let the title pass to the buyer
The very purpose of a sale deed is to enable the transfer of title from one party to another. This is the main document that will be used to change all certificates and documents related to the property. It is also what separates it from an agreement to sell because the transfer of title is a future obligation in an agreement to sell- which is fulfilled with a deed of sale.
8. Get indemnified
If you are a buyer, make sure that there is a detailed indemnity clause which shall make the seller responsible for any hindrances in the peaceful enjoyment of the property. Sometimes family properties subject to any dispute may be sold to you. The person who claims the property may create disturbances and nuisance which can make you lose sleep. Sometimes the property may be pledged to some individual or institution who may appear one fine day to stake their claim. This is why it is important to make the seller indemnify you against all problems that affect the sale deed.
9. Delivery details should not be missed
All details regarding how the possession is getting handed over need to be mentioned. Delivery of all the important documents in original and copies as applicable should be recorded. This will avoid confusions in future as to which document lies with whom. For example, mother deed may not be given for subdivided properties.
10. Witnesses matter
A valid sale deed should be attested by two witnesses: one from the seller’s side and one from the buyer’s side. Both the witnesses should be competent to contract as well. Their contact details should be mentioned as well.
What’s Next?
Once you are done drafting your Sale Deed, you are good to go with the registration. Remember that all parties involved including the buyer(s), seller(s) and witnesses need to be present. The requisite stamp duty and registration charges will be collected at the Sub-Registrar office while registration, and finally, the property will be registered in the name of the buyer.
- As per law, after the death of your father , his 50% share in the property would be devolved upon all legal heirs including your mother as per Muslim Law.
- Further, out of 100% share, share of mother will be 12.5%. and the remaining 87.5% will be distributed between sons and daughters. .
- Further , in this way your mothers share will be total 62.5 % in the property , and legally being the joint owner of the said property she having her right to sell the same without the consent of other legal heirs of your father.
1. The share of your father, who died intestate, has devolved on his Class 1 heirs (widow and children equally).
2. Your mother is at liberty to sell her undivided share in the property without any other heir's consent, but when the undivided share in a dwelling house is sold the buyer cannot take the possession till such time that he files a suit for partition and the civil court orders the division of property by metes and bounds.
She can only sell her share without consent for selling entire share she will require consent of other legal heirs
