If children execute registered release deed then mother would be owner of flat
.mother should furnish copy of registered release deed to society .
2) mother can then execute gift deed in favour of her children
Make nominee absolute owner of deceased property
Mother was nominee in the father's flat who died in 2005. Society transferred the Flat in the name of mother on the basis of Nomination in 2006 and other legal heirs i.e. children didn't have any issues. Now the mother made a Gift Deed in favour of children and again other children didn't have any issues. But the Society is now not accepting her application for transfer thru Gift Deed to her Donee Children objecting that Nominee is not owner to transfer the rights. All these years, mother thought she is the absolute owner as Society didn't inform her at that time, 2006, to get other documents for absolute transfer. Question is: (1) In agreement with legal heirs, on the basis of Registered Release Deed can Society make mother absolute owner? (2) Can the Gift Deed she executed and gave the copy to Society for transfer to Donee will be valid after making her absolute owner on the basis of Registered Release Deed? Awaiting response. Please help. Thank you
Asked 2 years ago in Property Law
Religion: Muslim
10 Answers
1. The law that the society is referring hereto is the central law and not the bylaws of the society, hence you cannot claim or blame society for this ignorance of law from your side.
If all the legal heirs of your deceased father are willing to relinquish their rights in the property by executing a registered release deed, then your mother becomes an absolute owner of the property.
2. As a matter of fact she was not the absolute owner of the entire property at the time of transferring the property in favor of her children by executing a gift deed.
Now this release deed will enable her to alienate the property in the manner she may desire to.
In the above case, property has been distributed as per Muslim Personal Law amicably. Only 1 Flat was felt with a understanding that this belonged to the other 3 Donees and will not be sold till mother is alive. But now since Mother is 82 years and worried, she made a Gift Deed for smooth transfer of Flat. WIll not there, succession certificate will take time, legal heirship is difficult to take as Tehsildars don't co-operate, family arrangement - can't afford the stamp duty. What's the way out. Registered Release Deed seems to the cheapest and fastest which the mother and other legal heirs prefer. Pls. clarifty
Asked 2 years ago
Succession certificate is only for movable debts and securities and not for immovable property
2) legal heir certificate is only to identify deceased legal heirs and not for transfer of flat
3) registered release deed should suffice
1. it is not clear from your query as to how many children there are
2. the mother was entitled to 12.5% share in the flat after demise of the father and the balance 87.5% would go to the children in such a way that sons would take double share as that of the daughter
3. by the gift deed the mother has sought to transfer the entire flat when she was entitled to only 12.5% share in it
4. so the gift deed is valid only to the extent of the mother's 12.5 %. Any transfer in excess of 12.5% is invalid in absence of release deeds from the children in mother's favour
5. so now the children will have to register release deeds in mother's favour to transfer their shares to the mother and thereby make the mother the full owner of the flat
6. the release deed attracts a duty of Rs. 200/- only + registration fee + registration agent charges + lawyer's drafting fee
7. in order to complete the title an heirship certificate should also be obtained so that there is no difficulty while selling the flat in future
8. application for grant of heirship certificate has to be made to the Bombay High Court and not to the tehsildar, in case the flat is situate in a place which comes within the jurisdiction of the High Court
9. release deed + heirship certificate both will be needed to complete the flow of title. And getting an heirship certificate from the HC is expensive!
Yes registered release deed will serve your purpose
All have to execute gift deed or release deed. Nomination does not trasfer ownership. stamp duty on gift deed between blood relation in mumbai is very low.
Maximum 100rs.
The process is very simple.
The property left behind by the Muslim male shall devolve on his legal heirs in the proportion as per the Muslim law of inheritance, i.e., the mother will be entitled to 12.5%, while the sons are entitled to twice the share of the daughters in the remaining 87.5%.
The sons and daughters can transfer the property either by civil law by executing a registered release deed relinquishing their rights in the property(In Maharashtra the stamp duty and the registration charges for the transfer between blood relatives is only Rs. 500/-) or by 'HIBA' (Gift deed), it is not mandatory to execute the Hiba by a registered deed as per Muslim personal law. The children of the deceased can transfer their share of property to their mother by a oral Hiba or a hiba reduced to writing on a white paper too, with or without witness.
The legal heirship certificate can be obtained from the concerned Tehsildar office to identify and confirm the list of legal heirs of the deceased.
1. As per law, after the demise of your father intestate, said flat will be devolved upon all the legal heirs , even the mother is nominee for the same.
- Further, for releasing respective share in favor of mother , all the legal heirs should registered a Relinquishment deed , and then the society is bound to make your mother single owner of the property.
2. The said Gift deed has been executed before getting full ownership of the flat , and hence only after becoming the single owner of the property , she can registered gift deed.
- The succession certificate is for claiming assets/fund of the deceased and legal heir certificate for showing the last of legal heirs , and hence a Relinquishment deed is needed.
- Further, after release deed , she can registered gift deed . A gift deed given to blood related is exempted from stamp duty.
It is correct that nominee is not the owner of property where he is nominee. As per law, nominee is merely to receive the property but he is bound to distribute the same among all legal heirs of deceased. so the concept that your mother is owner is factually incorrect and contrary to law. As per muslim law muslim woman is entitled to 50% share only in comparison to male muslim successor.
1. Release deed should be properly registered and succession certificate should also be obtained from court to get the property mutated in the name of mother also.
2. Question of gift deed does not arise as legal heirs are not the recorded owners of property.
Dear Client,
The notion that a nominee is the rightful owner of a property is legally inaccurate. According to the law, a nominee serves as a recipient of the property but is obligated to equitably distribute it among all the legal heirs of the deceased. Therefore, asserting that your mother is the sole owner of the property is factually incorrect and contradicts legal principles. In adherence to Islamic law, a female Muslim heir is entitled to a 50% share, which is half of what a male Muslim successor would inherit.
To ensure proper legal procedures, it is crucial to execute a well-registered release deed and to obtain a succession certificate through the court. These steps are necessary to facilitate the official transfer of the property into the mother's name. The concept of a gift deed does not apply in this scenario, as the recorded owners of the property are the legal heirs themselves. By following these steps meticulously, the rightful distribution and ownership of the property can be appropriately established.
