My Father, who is no more, had purchased a plot of land in Kerala. He is survived by my mother, my brother and myself. My father has not executed any 'Will'. Between the three of us (My mother, my brother and myself) we decided as follows. That I will pay my brother the market price of his rights (one third ) and he will transfer his rights to me. Likewise my mother will also transfer her rights also to me. My mother presently resides on that property and my brother lives elsewhere. In transferring their rights to me, is it better to do it through a Gift deed or a Settlement deed ? I understand that the stamp duty for a gift deed might be lower. My brother and his wife don't share a good relationship. Is there a possibility that she could challenge the arrangement that we (My mother, my brother and myself) propose to make ?
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Since you are paying your brother consideration for purchase of his one third share better to have sale deed executed for his one third share
2) mother can execute registered gift deed for her one third share in property
3) your sister in law can claim right to stay in said property as your brother has one third share in property
1. It's better to get Release /Relinquishment Deed executed by your brother and mother reinquishing their individual 1/3rd right over your deceased father's property in your favour and get it registered in the jurisdictional Sub Registrar's Office. Instead of Gift Deed or Settlement Deed, it's advised to get the registered Release/Relinquishment Deed in your favour.
2. Your sister-in-law will not have a say in the arrangement as it's your deceased father's property and she will have no right over it.
Your brother's wife cannot challenge the deed. She has no rights and is an outsider.
You should execute a gift deed. That is a better option. Both your brother and your mother can execute a gift deed in your name. This way you can also save money.
Thankyou Adv. Sastry. What demerit does Gift Deed have when compared to Release/Relinquishment Deed ? I understand that Gift deeds attract lower stamp and hence thought was a better option.
Relinquishment deed attracts nominal stamp duty when executed by close blood relative
gift deed has higher stamp duty
In the given circumstances your brother and your mother can jointly execute a registered release deed relinquishing their rights for some consideration passed or without passing any consideration too.
Your brother's wife do not have any rights over his property at least during his lifetime, besides she cannot claim residential rights in the property where your brother is not residing.
Therefore your brother's wife cannot challenge his act of relinquishing his rights in the property for any reason, and even if she does, it will not be entertained by court because she has no prima facie rights or interest in the property, hence her case is not maintainable.
The stamp duty for gift deed is higher than the stamp duty payable for the release deed executed within the blood relations.
Assuming that the property/mutation entries in the revenue records are still in your deceased father's name and has not yet been transferred to your mother, you and your brother, then it's advisable for you to go for registration of Release/Relinquishment Deed in your favour. May be in Kerala State, the Stamp Duty for Release/Relinquishment Deed amongst blood relatives also attracts lower stamp duty as that of gift deed. In Karnataka, the stamp duty for Release/Relinquishment Deed/Gift Deed amongst blood relatives attracts lower stamp duty. If the property/mutation entries in the revenue records have already been transferred in the names of your mother, you and your brother, then you can go for Gift Deed.
- As per law, after the demise of your father intestate , his property would be devolved upon all his legal heirs equally i.e. your mother , brother and you will have 1/3rd share in the property.
- Further, any of you can release his respective share in your favor after executing a Relinquishment deed
- Hence, your mother and said brother can execute Relinquishment deed in your favor for their shares.
- Further, Relinquishment deed having lower stamp duty than gift deed
- Since, they want to release their shares in your favor , then a settlement deed will not serve the purpose, and further you will face problem for getting loan etc.
- Further, the wife of your brother having no right to claim over the share of your brother during his life time , hence she cannot create any trouble in future , if you will get the same presently.
- She can claim only residential right from her husband and not from you.
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There is no difference in both.owneeship can be transferred through the said deeds. Variation in stamp duty in some states can be seem
Dear client I am sorry to hear that but in this case you can go for settlement deed or simple sealed because a gift deed might happen to be tricky and can we challenge the sometime by the legal heir.
