Yes you can do the aforesaid
Transfer of property due to excessive spending.
I have a plot where registration is in 3 people's name. 25% in my name, 25% in my brother's name and 50% in my mother's name. We are building a house for which I have taken a loan of Rs. 99.2L. The Market value of the plot is about Rs. 1.5Cr and after construction, the expected value will be Rs. 2.5Cr. The loan is being repaid only by me and over the course of 29 years, expected sum to be paid back, including interest is Rs. 2.69Cr. Originally, the plot was in the name of my father and mother in equal parts. My father transferred his 50% share of the property to me and my brother in equal parts when he had trouble getting a loan in his name. Now the ownership structure is 25% me, 25% brother, 50% mother. I have an oral agreement with my mother that upon her death, her complete share shall be transferred to me. I wish to have this legally documented as well, so that there are no disputes down the line. Secondly, I wish to have an agreement in place that my brother will have to transfer his 25% to me (or my next of kin), and he cannot sell his share to anyone else. How can this agreement be created and registered with the registrar to ensure this sale doesn't happen? I was earlier okay with having 75% ownership, but the loan amount has gone up from 75L to 1Cr, and my brother instead of even thinking of helping, has started regularly fighting and raising hell in the house. 1 year ago, during transfer, he insisted that he doesn't want any share, but was overruled by my father. Today, I feel that ideally, he has no right to the property if he is not contributing to the family, and I have to bear all expenses from Loans, Electricity to even milk. I want to avoid a bigger dispute later and settle this now, when I. can still stop construction and sell the property altogether and be free of the headaches.
Asked 3 years ago in Property Law
Religion: Hindu
7 Answers
Your mother can execute a registered conditional settlement deed in your favour retaining life interest over her share in the property.
As far as your brother's share is concerned he can either transfer his share by a relinquishment deed or gift settlement deed with or without consideration, in your favour.
Until and unless your brother mutually agrees to transfer his share in the property you cannot force him to do so.
You should have handled the issue properly even before you applied for loan for construction.
You will certainly face legal complications in future if you do not sort it out amicably at this stage.
Your mother can execute gift deed in your favour
it should be duly stamped and registered
3) you can enter into MOU with your brother that he will not sell his 25 per cent share to third party .
In your circumstances I think best would be to go for a Deed of Family Arrangement between your mother and the 2 sons (the other family members like spouse and children of the brother can also join, provided that if the brother's children are minors then the brother can sign on their behalf as natural guardian)
It is optionally registrable since no transfer of property will happen at present. The transfers will take effect in future. So stamp duty would not get attracted on the deed
However if you wish you can have the deed registered
It's also advisable to have this deed signed by the parties in front of 2 witnesses and the entire signing procedure be video recorded so that nobody cry fouls later
Hello,
- The fact is that even if your brother is not contributing anything to the expenses on the family, his share of 25% will continue to be his even after construction of the house on the loan you have availed as your father has transferred it to him.
- Therefore, of you want to take that away from him you will need his consent in the form of a registered transfer on your favour in the firm of a Gift Deed, Sale Deed or Relinquishment Deed. You may purchase his share, if he sells it to you at a reasonable price. The reason for your consideration to do so now is that after you have finished construction, your loss would be much greater comparatively.
- Likewise it is advisable that you get your mother's verba assurance converted to a registered document of transfer in your favour, may be through a Gift Deed.
Dear Client,
A sale deed is a legal document to prove actual transfer of property from seller to the buyer. It is absolutely mandatory to get a sale deed registered. A sale deed has details including details of buyers, and sellers, property area, construction details, sale amount (token, pending), date of possession, etc.
Sale deed registration process is also carried out in the office of Sub-registrar after the payment of stamp duty and registration charges.
Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the rights of a transferee in this type of a transaction.
EXPLANATION OF SECTION 44 TPA, 1882
Section 44 says -
Transfer By One Co-Owner- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, so far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Thank You.
- Since ,your share in the said property is 25% , then your brother and mother can make you the single owner of the entire property after registering a release deed in your name .
- Further, your mother can registered a gift deed as well in your name for her share in the property , however if she wanted to transfer her share in your name then she can write a Will in the presence of two witnesses .
- Further , you can enter into an agreement with your brother for the condition of not selling his respective share in the name of third party , and can register the same as well.
- Further , you can stop the construction after filing a suit for Injunction before the court.
