• How to divide house property for subsequent sale

My mother totally herself owns a house property which she wants to sell. Purpose of sale is to give her two sons and two grandsons equal money to buy house property themselves. The questions are
1) how to get separate shares on sale ? she should gift shares in her undivided property to sons & grandsons OR do a partition deed. what taxes & duties are chargeable for transfer ?
2) If the proceeds from house property are invested by each individual fully into another house property then can they claim LTCG exemption ? If any individual has already two house properties in his name then can he still claim LTCG exemption after purchasing third one out of proceeds of sale ?
3) In what mode of property transfer the granddaughters have claim to grandmothers property ?
Asked 1 year ago in Property Law from Hy, Telangana
Religion: Hindu
1) mother can execute gift deed of the house in favour of her sons and grand sons 

2) gift deed in favour of close family relatives attract nominal stamp duty . gift deed  has to be regd 

3) the sons can sell the house and reinvest sale proceeds in purchase of another house property 

4) if it is self acquired property of grand mother grand daughter s have no share in said property . even the children have no share during mother lifetime 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
there were specific provisions in the income  Tax Act which state that in the case of a gift, the period for which the previous owner held the asset had to be taken into consideration for determining if the asset was a long-term or short-term one

2) in your case since property has been held by your mother  for number of years it would attract long term capital gains tax
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1) gift deed can mention shares for each individual 

2)if your mother was not working the issue would what is the source of funds . if it was bought by your father in mother name the contention of other legal heirs namely daughters if any would be it was bought for the benefit of joint family and they cna move court tos et aside gift deed 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1. If she gifts liquidated money then there is no need for execution of any deed and even if any deed of gift is made that need not be registered. Partition deed is nit needed.
2. Please take help from CA or IT expert.
3. granddaughters have no right of inheritance in the property of grand mother.
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
1) how to get separate shares on sale ? she should gift shares in her undivided property to sons & grandsons OR do a partition deed. what taxes & duties are chargeable for transfer ?
You have stated that your mother want to sell her property and to give away the sale proceeds to her two sons and two grandchildren, then where is the question of partition or undivided share etc.? Your question is about partition or sale?, If it is her own property what prevents her from selling the property and dividing the sle consideration equally among the proposed beneficiaries?

2) If the proceeds from house property are invested by each individual fully into another house property then can they claim LTCG exemption ? If any individual has already two house properties in his name then can he still claim LTCG exemption after purchasing third one out of proceeds of sale ?
The LTCG exemption can be availed by the person who sold the property and not by the person who was gifted with the money.  The sale proceeds or otherwise is a gift in the hands of the donee so there is no reason for the donee to claim exemption under LTCG, however your auditor w3ill be having a different reason to convert the same to enable you to claim the benefits, hence consult the auditor on this issue. 

3) In what mode of property transfer the granddaughters have claim to grandmothers property ?
Grandmother's property is her own property hence she has full rights to transact with it in any manner of her choice and desire.  She can sell it, stlle it  or gift it or bequeath it to any person or persons of her choice, nobody can have right to claim even a single bit in it during her life time.  Upon her intestate demise the property shall devolve on her own legal heirs and not on grandchildren, so the granddaughters do not have any right in it. 



1) Can the gift deed  specify amount of share, for each individual,  in the house and the land(plot) over which it is built ?
Gift deed pertains to the movable property or to the immovable property?  Whatever there is  no rule to have any specifications in favoring any one person(s), it is the donor's will and wish to allocate accordingly. 

2) My mothers property in discussion is not self earned. It is bought in her name by my father. So is gifting by her that property to sons and grandsons(excluding granddaughters) legal ?
Once a property is in the hands of a married woman, it becomes her own absolute property and she has full rights to do whatever she want to with it, there is no question of ancestral claim in it and the root of acquiring the said property cannot be questioned by anyone.
T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
5.0 on 5.0
1. If she is selling her own property she need not make any partition of the same. After collecting the sale proceeds, she can gift and transfer any amount she deems fit to her sons or grand sons/daughters as per her wish,

2. The amount so gifted after selling her house property is not LTCG or STCG since there has been no capital invested by those donees and the said amount has been gifted only,

3. The granddaughters or anybody else will have no claim legally on their grandmother's property during her lifetime.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1. If she sells her property, then she can gift cash to whoever she likes. If the property is not sold, she can herself divide the property the way she wishes and make will or gift deed favouring any body she wishes to,

2.If the property is in her nme and if she is writing the gift deed without any force, hen the id gift deed is legally valid as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1) mother can execute gift feed in favour of sons and grandsons if she so desires 

2) grand daughters have no share in property as it is not ancestral. Property 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1. If the property is not sold first by your mother, then she can gift the same in favour of any body she wishes to by dividing the property herself and gifting the divided shares,

2.Both have the same affect in your case and boh should be registered.

Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
You can read my previous answer once again carefully which reiterates that  the property in the hands of a married woman (lying on her name)will be her own and absolute property and it is immaterial that how she acquired it.
Therefore nobody including her own children or husband or any third person has any rights in it during her life time and she can dispose it in any manner she desires and to anyone of her choice.  Nobody can question this nor she has to obtain consent from anyone for disposing her property as per her own will and wish. This will make sense that not only the grand daughters but anyone has no right to claim any share in her property during her lifetime. 


Next, partition deed or gift deed, it is a transfer of property.  She cannot partition the property but can divide and settle them accordingly to the chosen beneficiaries by was of family settlement or gift deed or by a will of testament 
T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
5.0 on 5.0
1. Your mother can sell her self acquired property and divide the sale proceeds at her sweet will by executing a family settlement with her children and grand children. Alternatively, a partition deed can also be executed.

2. To qualify for long term capital gain exemption the new residential property must be purchased either 1 year before the sale or 2 years after the sale of the property/asset, or the new residential house property must be constructed within 3 years of sale of the property/asset. Investing of the proceeds by the mother will not entitle her heirs to LTCG exemption.

3. Unless the property is transferred by the owner to her sons before the sale the latter cannot claim LTCG tax exemption.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. The gift deed has to specify the extent of share or the amount, as the case may be.

2. Your mother is the owner of the property if the title deed is registered in her favour regardless of who paid the consideration.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. Your grandmother as the absolute owner of the property can gift it to anyone she desires. Her right to gift at her sweet will is unquestionable.

2. The partition deed has no advantages over the gift deed.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Property Lawyers

T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
434 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2735 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0