• Muslim Mother and Son Joint Property Ownership

I plan to buy a property in Mumbai and wish to make my mother a co-owner. I have two siblings and they have no contribution towards this purchase. Is there a way I can ensure if God forbids anything to happen to my Mother the property is passed to me without any issues?

I have read about Joint tenancy clause. Is that something that we need to ask our Builder to ask in Sales deed when during property registration Or its entirely a different process?
Asked 2 years ago in Property Law
Religion: Muslim

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6 Answers

Better purchase property in your name only 

 

in alternative if it is bought in joint names your mother can during her lifetime execute gift deed in your name 

 

3) Joint tenancy is a type of joint ownership of property in the field of property law, where each owner has an undivided interest in the property. This type of ownership creates a right of survivorship, which means that when one owner dies, the other owners absorb the deceased owner's interest.

Ajay Sethi
Advocate, Mumbai
99784 Answers
8145 Consultations

- If the said property will be registered in the name of you both , it means that she will have her 50% share in the said property legally. 

- Further, after her demise her said share in the joint property , can be claimed by her all legal heirs as per Muslim Law. 

- Hence, you can mention a clause in the sale deed , that the Vendee No. 1 due to love and affection adding his mother i.e. Vendee No. 2 as  joint owner of the property , and the amount of purchasing property is funded by only Vendee No. 1.

- Further, in the alternate after registration , your mother can write a Will in your favor after mentioning that the property is purchased by the amount of you , and after demise none will have any right over her share , except you. 

- However, the builder being the Vendor/seller cannot mention itself any clause for the said reasons . 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

The property jointly purchased shall be owned jointly by both the purchasers.

Therefore your siblings shall be entitled to a share out of your mother's share in the property at a later stage if something happens to her.

Hence better buy the property on your name or on yor mother's name alone  and then you can get a conditional gift deed executed by yor mother in your favor by she retaining life interest so that you can become an absolute owner after her lifetime.

T Kalaiselvan
Advocate, Vellore
89985 Answers
2492 Consultations

purchasing as joint tenants is an option but it not without problems

in joint tenancy, when one joint tenant dies, the survivor becomes the exclusive owner and the legal heirs of the deceased joint tenant cannot claim 

however there is a possibility that before your mother, you die, in which case your mother being the survivor joint tenant, the flat will become of her exclusive ownership

your legal heirs will not be able to claim

so i would suggest against having a joint tenancy clause

instead have it mentioned in the sale agreement that your mother is being joined as a co-purchaser only for convenience and out of respect towards her and that she has not contributed any money for the purchase of the flat and the entire sale consideration is paid by you

however the above does not guarantee that post the demise of your mother, your siblings will not claim

also making a Will of your mother in respect of her 50% share in the flat is also problematic since under the Shariat law, a Muslim can bequeath only 33% of his property and for any bequest in excess of 33% he has to take the consent of his future legal heirs

so the best option according to me is, for now include your mother's name as a co-purchaser with the aforesaid recording as regards who has paid the sale consideration and later on have your mother make a gift deed of her 50% share in your favour with a condition super added that till she is alive she will be entitled to live in the flat 

 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

She needs to execute a will in your favour otherwise other siblings can claim share 

Prashant Nayak
Advocate, Mumbai
34520 Answers
249 Consultations

Dear client,

In Mumbai, you can protect your interest in the property by taking a few precautions. One common method is to clearly specify the ownership share in the property.

1. Property Agreement: Draft a legal agreement specifying the ownership share between you and your mother. Ensure that the agreement states your larger contribution towards the property purchase. This can include percentages or portions owned by each party.

2. Will or Gift Deed: Your mother can create a will or a gift deed specifying her wish to transfer the property to you in case something happens to her. A will can outline her intentions for the property after her demise, ensuring her share goes to you. However, a will can sometimes be challenged legally, so it's crucial to ensure it meets all legal requirements.

3. Joint Tenancy with Right of Survivorship: You and your mother can hold the property as joint tenants with the right of survivorship. In this scenario, if something happens to your mother, her share automatically transfers to you without going through her estate. This arrangement bypasses the need for a will but requires clear legal documentation.

4. Trust: Establishing a trust can be another way to manage the property. Your mother can create a trust and name you as the beneficiary, ensuring that if anything happens to her, the property automatically transfers to you as per the trust's provisions.

Creating a joint tenancy with right of survivorship typically requires specific legal documentation beyond the standard sales deed during property registration. It's not usually included by default in the sales deed unless specifically requested and outlined during the property purchase process. To establish a joint tenancy with right of survivorship, you'll likely need to create a separate agreement or deed that explicitly outlines this arrangement. This agreement needs to specify the co-ownership structure and the right of survivorship, ensuring that if something happens to one owner, their share automatically passes to the surviving owner(s) without going through probate or the deceased owner's estate.

You can reach out to us for further assistance

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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