• Partition of properties amongst siblings where there is no will

My parents have not left any will for 3 properties. We are 5 siblings.Out of 3 properties we have given one property ( open land) for development and the deed is registered. Now we have to do the partition deed for this property given for development. In case of second property which is also open land, my three sisters are ready to give their share to me and another sister has refused. Now i am in dire need of funds and intend to give this property for 
a) development and b) sell the land at a reasonable cost. These properties are located at vijayawada where the realty business is down. In case of third property also it is still in undivded state we intend to go for development only. In view of the above kindly suggest the best way and also about the capital gains in the second property which i want to develop/ sell in dire need of funds
Asked 10 months ago in Property Law
Religion: Hindu

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8 Answers

1) suplementary sharing agreement f has to be entered into with developer in respect of first property 

 

2) it should mention share if siblings in respect of flats constructed on said plot 

 

3) as far as second plot is concerned your 3 sisters can execute gift deed for their one fifth share each in property 

 

4)mutation should be done in name of legal heirs 

 

5) you can sell your share in second property 

 

6) in respect of third property enter into development agreement with builder 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

It is for the family members to decide how to divide the properties. For first property given for development, family members can register a partition/settlement deed on terms agreed. In case of second property, unless all agree there cannot be partition. In case of disagreement you need to file a suit for partition in district Court. You need to talk to all legal heirs and settle the dispute among you. If there is  any disagreement, the only solution is suit for partition. Stamp duty for registration of partition, relinquishment and gift deed is 2% and registration charges 1000.

 

Government provides a number of exemptions which can be claimed on capital profits made. Here is a list of all the exemptions that can be claimed with respect to gains from capital assets. 

You can seek exemption from capital gain tax under following provisions …

 

  1. Section 54 of the Income Tax Act you need not pay any tax if you buy a new house from profits earned within two years. In case you can’t find the right property to buy and you are unable to come up with a concrete plan in 2-3 years, you still can save tax on the capital profit earned. This can be achieved by investing gains in the Capital Gains Accounts Scheme (CGAS) in any public sector bank. This amount can then be claimed for tax exemption.

  2. Under  Section 54 EC you can invest in bonds issued by NHAI that is National Highway Authority of India or REC which is Rural Electrification Corporation. But there is a limit to exemption under Section 54 EC and is Rs.50 lakh.
  3. Capital gains is not applicable to sale of property if the entire amount is invested to set up a small scale or a medium scale industry. However, to avail tax exemption, the tools and machinery for manufacturing should be bought within 6 months from date of sale.

Ravi Shinde
Advocate, Hyderabad
3525 Answers
42 Consultations

5.0 on 5.0

The first property has already been given for development by a registered JDA .

The terms of the JDA will define the allotment of individual share of each shareholder.

Therefore there's no question of partition for this first property.

As far as second and third properties since one of the shareholders is not willing for joint development you cannot force her but you can go for an amicable partition with her by giving her a compensation to her share so that all your siblings can execute a registered release deed jointly relinquishing their rights in the property.

This would enable you to overcome the problem peacefully and comfortably.

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

The applicable stamp duty is to be paid for registering the partition deed.

A single partition deed also would be sufficient to divide all the properties as per mutually agreed conditions among the shareholders.

There's no capital gains payable nor any other tax payable for inherited properties.

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

It's better they adopt mutual understanding through  registered family settlement deed

Prashant Nayak
Advocate, Mumbai
28570 Answers
101 Consultations

4.4 on 5.0

you can only sell 80% undivided share of the second property after your 3 sisters release their shares to you

there is no capital gains tax on the releasee

however if you sell the property then capital gains tax will be attracted

if you have held that land for more than 1 year then you have to pay long term capital gains tax @20% with indexation benefit 

if you invest the capital gains proceeds for purchase of a residential house within the stipulated period or if you purchase government specified bonds u/s 54ec then you can save the capital gains tax

for development of land, it depends what you are getting. whether monetary consideration or any constructed structure 

Yusuf Rampurawala
Advocate, Mumbai. E: adv.yusuf.rampurawala@gmail.com
7074 Answers
79 Consultations

5.0 on 5.0

Dear Client,

As per the facts which have been provided, for the first property family members can register a partition/settlement deed on terms agreed. For the second property all need to agree for partition. In case of disagreement you should to file a suit for partition.

Thank You.

Anik Miu
Advocate, Bangalore
5846 Answers
59 Consultations

4.9 on 5.0

Partition did should be made in this regard to get the property identified and partition suit should be filled in the court to record the partition in respective names you have to pay the stamp duty at the applicable rate that you have to check in the area where you are going to file the suit

Vimlesh Prasad Mishra
Advocate, Lucknow
6849 Answers
23 Consultations

4.9 on 5.0

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