We have a house G+2+penthouse, which is registered under my mother's name. My mother passed away in May 2019 and recently even my father passed away. Now we are only two brothers. My brother lives in USA. We would like to sell the house. for that we would like to transfer ownership from my mothers name to our name. Also my brother would like to give me POA so that I could sell the house. But he cannot come to India. We live in outskirts of Hyderabad, Telangana. We are muslims. So not sure if the law will be different. Our parents didnt left any will.
since your parents died intestate you and your brother are legal heirs
2) make an application for mutation of property in your names
3) enclose death certificate of parents
4) latest receipt of payment of property taxes
5) affidavit in support
6) in case authorities insist enclose legal heir certificate
You both have equal share. Apply for legal heir certificate. On the basis of it, apply for mutation or sell without mutation.
- As per law, after the demise of your parents intestate, the property of your mother would be devolved upon you two brothers equally , if there is no sister
- You can apply for mutation before the revenue department in both the names , after submitting the death certificate of parents and the copy of the property
- Further, if your said brother is not able to come to India, then he can give a POA to any relative or you, for selling that property and to make you POA holder
- The said POA should be notarized as per rule of that country , and attested from the consulate of India.
as per muslim law under intestate succession the property is devolved via set formula. the property of a muslim intestate is inherited by his/her sons as reversioners thereby both sons will get 1/2 in the said property.
first you have to acquire a legal heir certificate,then
you have to acquire succession certificate in case you want to inherit movable property.
in case of immovable property you have to institute a proceeding in court for letter of administration and upon completion of that you can get the property registered in your name and sell it off.
Dear Client,
Inheritance of property in India can vary according to personal and religious laws. If a will is not present, the property will normally be divided among the legal heirs in accordance with the personal laws that apply to your religion—Muslim law in this case. The surviving spouse and children are normally considered the legal heirs under Muslim law. You and your brother will probably be the legal heirs since both of your parents have passed away.
In order to prove your claim to the property, you might have to apply for a legal heir certificate. Documents proving your identity and relationships, as well as the death certificates of your parents, may be required during this process. After the legal heirship is established, you and your brother can start the process of transferring the property from your mother's name to yours. To assist you with the property transfer procedure and to make sure that all applicable state laws and regulations are followed, speak with a local attorney.
Your brother can give you a power of attorney to act on his behalf in India; he is in the USA. This will enable you to sell the house even though he isn't there in person. He will have to write a POA document outlining the authority given to you and why it is being given. In the United States, the document must be notarized and signed. It might also require an apostille from the Indian Consulate or Embassy in the United States. You should confirm the specific requirements with the Indian Embassy or Consulate as they may differ from one another regarding the attestation of the document.
You can use the duly executed and attested Power of Attorney to sell the property on your brother's behalf. To make the POA enforceable, make sure it is registered in India.
If there are only two legal heirs surviving your mother then you both can sell the property jointly by first obtaining a legal heirship certificate from the local revenue department and by obtaining the death certificate also.
Your brother can execute a GPA duly attested by an official of the Indian embassy or by a notary public in the place where he currently resides and send it to you, which you get it adjudicated and then proceed with the sale of property as desired.
Remember that TDS will be deducted out of your brother's share of sale consideration value to be paid by the prospective buyer.
The property succession for Muslims in India is governed by the Muslim Personal Law (Shariat) Application Act, 1937, which excludes the application of the Indian Succession Act, 1925 and the Hindu Succession Act, 1956. The Muslim law of succession is based on the sources of Islamic law, such as the Quran, the Sunnah, the Ijma, and the Qiyas. The Muslim law of succession is different for Shias and Sunnis, who are the two major sects of Islam.
Since your mother passed away without leaving a will, her property will be inherited by her legal heirs according to the rules of intestate succession under Islamic law. The legal heirs of a deceased Muslim are divided into three classes: Quranic heirs, Agnatic heirs, and Uterine heirs. Quranic heirs are those who are mentioned in the Quran and have a fixed share in the inheritance. Agnatic heirs are those who are related to the deceased through a male line. Uterine heirs are those who are related to the deceased through a female line.
As per the Sunni law of succession, you and your brother are the Quranic heirs of your mother, as you are her sons. You and your brother will inherit 2/3rd of your mother’s property in equal shares, i.e., 1/3rd each. The remaining 1/3rd of your mother’s property will be inherited by her other legal heirs, such as her father, mother, husband, daughters, etc., according to their respective shares. If your mother has no other legal heirs, then you and your brother will inherit the entire property in equal shares, i.e., 1/2 each.
As per the Shia law of succession, you and your brother are also the Quranic heirs of your mother, as you are her sons. However, the shares of the Quranic heirs are different in Shia law. You and your brother will inherit 7/12th of your mother’s property in equal shares, i.e., 7/24th each. The remaining 5/12th of your mother’s property will be inherited by her other legal heirs, such as her father, mother, husband, daughters, etc., according to their respective shares. If your mother has no other legal heirs, then you and your brother will inherit the entire property in equal shares, i.e., 1/2 each.
In order to transfer the ownership of your mother’s property to your name and your brother’s name, you need to obtain a legal heir certificate from the local authority, such as the tehsil office or the municipal corporation. The legal heir certificate is a document that certifies the relationship of the heirs with the deceased and their entitlement to the property. You also need to obtain a succession certificate from the district court, which is a document that authorizes the heirs to inherit the property and deal with the debts and liabilities of the deceased. You also need to get the property mutated in your name and your brother’s name in the revenue records of the local authority, by submitting the required documents, such as the death certificate of your mother, the legal heir certificate, the succession certificate, the property tax receipts, etc. You also need to pay the applicable stamp duty and registration fees for the transfer of property.
If your brother wants to give you the power of attorney (POA) to sell the house on his behalf, he can do so by executing a POA from abroad. A POA is a legal document that empowers one person to act for another person in legal matters. There are two ways to execute a POA from abroad: Legalisation and Apostille. Legalisation is the process of getting the signatures of the notary or judge before whom the POA is executed authenticated by the duly accredited representative of the Indian Embassy/Consulate in the foreign country. Apostille is the process of getting the POA certified by the designated authority of the foreign country that is a member of the Hague Convention of 1961. The POA should be then sent to India by post and registered at the office of the Sub-Registrar within the jurisdiction of the property. The POA should also be stamped with the appropriate value of stamp duty as per the state laws.
For selling you don’t need to transfer ownership if you are legal heir of the same
