My mother brought a commercial shop property in Malad, Mumbai from a builder. Although the document is stamped and stamp duty is paid through franking in 1998. The sale agreement was not registered. My mother passed away in 2010. She has bequeathed the property to me through a unregistered/non notorized will. The executor (my father) of the will has also passed away in 2013. The will was not applied for probate by executor ever. The other legal heirs have No interest in property and no claim on property. The declarations of no intrest in property, no claim on property and no dispute on my mothers will by othe legal heirs have been made which is signed and notarized. I want seek a bank loan, or even sell the property in future. Bank said the title is not clear. Please advise How to make the property clear and marketable title to me. Can the sale deed be registered now? How can the property be transfered in my name for me to sell the property?
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1)sale deed has to be registered within period of 4 months from date of execution . maximum time is 8 months
2) contact the builder and request him to execute deed of confirmation that shop has been sold to your mother
3) further you have to obtain letters of administration from bombay high court in respect of the shop
Is the confirmation deed subject to stamp duty? What is the process of Letter of adminstration? Fees, payments and time frame? What is the legal status of unregistered sale deed of 1998?
1) deed if confirmation is subject to stamp duty
2) you have to contact local lawyer in Mumbai and apply for letters of administration in Bombay high court
3) court fees would be Rs 75000 and legal fees extra
4) un regd sale deed is in admissible in evidence
Deed of confirmation by the vendor is subject to payment of stamp duty.
Section 213(1) read with section 57 of the Indian Succession Act, 1925 inter alia states that the right of a person who inherits a property bequeathed under a will cannot be established unless a court of competent jurisdiction in India has granted a probate of the will or letters of administration with the will annexed thereto have been obtained.
It is pertinent to note that the declarations executed by other legal heirs of your mother on stamp paper—stating that they have no right, title or interest in the flat in question—is not sufficient to establish your right over the flat and the same can be subject to challenge at a later date. Thus, it would be advisable to obtain a probate of your mother’s will.
You can apply for a probate of your mother’s will in a court of competent jurisdiction. The maximum court fee payable in Maharashtra is Rs.75,000 and it takes 8-10 months to obtain a probate. It is to be noted that only the executor appointed under the will can apply for a probate. If there is no executor appointed or the executor has passed away or does not wish to perform his/her duties, you may apply for letters of administration with the will annexed.
The unregistered sale deed is admissible as evidence.
1. If the sale deed is registered then absence of registration of the sale agreement does not have any legal significance as the sale agreement precedes the execution of the sale deed, so by legal implication the title flows out of the sale deed and not sale agreement.
2. If the sale deed is not registered then the remedy is to file a lawsuit against the builder or his legal heirs (if the builder is not alive) to legally compel him to come and execute the sale deed. Once the sale deed is executed the title will become clear.
3. The sale deed has to be registered in favour of all heirs of your mother unless other heirs of your mother execute a relinquishment deed in your favour.
4. The confirmation deed will not suffice is the sale deed itself has not been registered.
5. You do not require letter of administration as you do not possess the title to the property.
6. Issue a lawyer's notice to the builder or his heirs, as the case may be.
