I bought a flat in Thane area of Maharashtra. All the payments for the flat were done by me. However, when I purchased the flat, I added my mother's name as co purchaser or secondary owner. My mother has two sons; myself and my brother. She made a will in 2015 in which she has already made me 100 percent owner of this flat. The will 1) It is not registered 2) Everything is in order, but she has not signed on the bottom of every page. However, she has signed at the end and also there is also it has the signatures of two witnesses a) a doctor and b) one advocate. My mother passed away in 2019. The flat was transferred in my name by the society using a notarized copy of the above will. So currently in the share certificate of the flat only my name is present. My mother's name has been removed from the share certificate. My brother was present and is aware, I now wish to sell the flat. What documents should I have in order to have a smooth sale. Considering that the will has the above points to be considered will I have any concerns raised by a potential buyer in selling the flat. What precautions should I take and do I need any other documents in place to make to 100 percent perfect?
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Dear Sir,
After the WILL has been acted upon and the flat is fully on your name, there is no impediments in selling that. All you need to have is chain of all documents so that the buyer is getting the complete information of the property he is buying.
Buyer may insist on probate of will
2₹ in alternative buyer may insist that your brother execute registered relinquishment deed for his share in the property or act as witness to the will
As your mother's Will was duly signed by her and witnessed, it is perfectly valid in law, though not registered. Signing of each and every page, though technical, doesn't legally matter. For selling the flat, the sale deed in your name (or joint names), your mother's Will and the society's records are sufficient. The buyer cannot raise any valid objections.
Your Will is valid despite being unregistered and lacking page wise signatures, but to avoid any challenge from your brother and ensure a smooth sale, you must obtain a Release Deed from him relinquishing his rights, and keep ready the original sale deed, death certificate, Will, share certificate, society NOC, tax receipts, and encumbrance certificateand since probate isn't required in Thane, getting that Release Deed is the single most important step to make your title 100% marketable.
While the Society has transferred the share certificate to your name, an unregistered Will alone can leave a cloud on the title for potential buyers. Under Indian law, a Will does not need to be registered to be valid, and missing signatures on non-final pages do not invalidate it as long as the testator signed the end in the presence of two witnesses. However, buyers and home loan banks routinely object to buying properties transferred purely on an unregistered Will due to the risk of future legal heir claims.
However sine your brother was present, aware, and non-objecting during the society transfer, you may get a registered relinquishment deed executed by him with regard to 50% share in the property or he can sign as a Confirming Party directly in your sale deed when you sell to the final buyer. This permanently removes any title defect without having to go through a lengthy court probate process. Any buyer’s advocate or bank will readily accept this.
- As per law, the registration of a Will is not mandatory , if it was written in the presence of two witnesses.
- Since, the said Will having two attesting witnesses and the society has accepted the same then you will not face any trouble in selling the flat .
- Further, it is also not mandatory to sign on each and every pages of the Will , and hence the said Will is valid .
Selling the flat is entirely doable. The key concern for any buyer's lawyer will be your brother's potential claim as a legal heir, despite your mother's will. Under Section 63 of the Indian Succession Act, the will is valid even if unregistered and signed only at the end, provided it is attested by two witnesses (which it is). To eliminate all doubts and ensure a 100% smooth sale, you should take two key steps: first, obtain a Legal Heir Certificate from the Tahsildar's office to officially establish your relationship and your brother's status as a legal heir; second, and most crucially, have your brother execute a registered No Objection Certificate (NOC) or relinquishment deed formally relinquishing any claim to the flat. These steps will reassure the buyer and their lawyer, making the title indisputable. The society's transfer of the share certificate solely to your name is already a strong point in your favor. In summary, while your current documents are sufficient, proactively securing the brother's NOC and a Legal Heir Certificate will make the title "100 percent perfect" and facilitate a hassle-free sale.
Dear Sir/Madam, based on the facts shared by you, the proposed sale of your flat can be undertaken, but it would be advisable to complete certain legal and documentary formalities beforehand so that the title appears clear and marketable to a prospective purchaser. The first document that requires examination is the original registered Agreement for Sale/Sale Deed through which the flat was purchased. Although you have stated that the entire purchase consideration was paid by you, the legal ownership of the flat will primarily depend upon how you and your mother were described in the registered purchase document. If your mother was included as a co-purchaser/co-owner, her legal interest in the property would ordinarily devolve in accordance with her Will, irrespective of the fact that the consideration was paid entirely by you, unless the original document clearly establishes a different ownership arrangement.
As regards your mother's Will, the fact that it is not registered does not by itself render it invalid, since registration of a Will is not compulsory under Indian law. Similarly, the fact that your mother did not sign at the bottom of every page would not automatically invalidate the Will, provided that she signed the document with the intention of executing it and that the Will was duly attested by two witnesses in accordance with the legal requirements. Since you have stated that your mother signed the Will at the end and that it was attested by two witnesses, namely a doctor and an advocate, the Will may be legally valid, subject to verification of its original contents, execution and attestation. It would be important to preserve the original Will, as a notarized copy alone may not be sufficient for establishing the chain of title during a purchaser's legal due diligence.
The fact that the housing society transferred the flat and the share certificate solely in your name after your mother's death is certainly favourable and supports your possession and membership rights in the society. However, it is important to understand that mutation or transfer in the society's records does not by itself conclusively establish ownership title to immovable property. A prospective purchaser and, particularly, a bank financing the purchaser may examine the original purchase documents, your mother's death certificate, the original Will and the manner in which your mother's interest in the property devolved upon you.
Your brother's knowledge of the Will and his presence at the time of transfer of the society share certificate are also favourable circumstances. However, to make the title commercially stronger and minimise the possibility of future objections, it would be advisable to obtain a written declaration or No Objection from your brother confirming that he is aware of your mother's Will, accepts that your mother's interest in the flat devolved exclusively upon you, has no right, title, interest or claim in the property and has no objection to your selling the flat. Depending upon the legal opinion obtained after examining the title documents, a properly executed confirmatory or release/relinquishment document may also be considered if required. This would provide additional comfort to a prospective purchaser and reduce concerns regarding any future succession-related dispute.
Since the property is situated in Thane, Maharashtra, the issue of whether probate or any other testamentary proceeding is legally required or advisable should also be specifically examined. The legal requirement for probate depends upon the applicable succession laws and the relevant jurisdictional provisions. Therefore, before entering into an agreement for sale, it would be prudent to obtain a written legal opinion from a property lawyer after examining the original Will, the original title documents and the exact location and nature of the property. Even where probate may not be mandatory, obtaining appropriate supporting documentation can make the title more readily acceptable to a cautious purchaser or lending institution.
For a smooth sale, you should keep ready the original Agreement for Sale/Sale Deed, Index II, your mother's original death certificate, the original Will, the current original share certificate showing you as the sole holder, the society resolution or correspondence approving the transfer of shares in your favour, the society's No Objection Certificate for the proposed sale, maintenance payment receipts, property tax receipts, electricity and other utility bills, occupancy and completion certificates wherever applicable, and a fresh title search and encumbrance report. It would also be advisable to conduct a CERSAI and other relevant encumbrance searches to demonstrate that the property is free from mortgages, charges or third-party claims.
In addition, before finalising the sale, a comprehensive title search and legal opinion should be obtained covering the complete chain of title. The title verification should specifically examine the ownership structure under the original purchase document, your mother's share or interest in the property, the validity and execution of the Will, the transfer of the society shares in your favour, the possibility of any claim by your brother and the existence of any encumbrances, mortgages or pending litigation. A public notice in newspapers inviting objections to the proposed transaction may also be considered as an additional precaution, particularly because the title has devolved upon you through an unregistered Will.
In conclusion, based on the facts provided, the unregistered nature of the Will and the absence of signatures on every page do not automatically invalidate it. However, the Will's validity will ultimately depend upon whether it was properly executed and attested in accordance with law. The society share certificate in your sole name is helpful but should not be treated as the sole document establishing complete title. To make the transaction as legally secure as possible, you should preserve and produce the original Will, obtain a detailed title opinion, clarify the probate position, obtain an appropriate written confirmation or No Objection from your brother and maintain a complete documentary chain before proceeding with the sale. These precautions will substantially reduce the likelihood of objections from a prospective purchaser and assist in ensuring a smooth and marketable sale of the property.
Dear Client,
Since the flat is now in your name only, you may choose to generally sell it, but a buyer may scrutinise the title because your mother was a co-owner and the transfer was based on an unregistered Will. An unregistered Will maybe valid if properly executed and attested by two witnesses; signing every page is not generally mandatory if the Will is duly signed at the end. However, for a property in Maharashtra, particularly when the property is in Thane, it is advisable to have the original Will, death certificate, society transfer records, share certificate, purchase deed, and all title documents available. If there is any possibility of your brother disputing the Will, obtaining his registered release deed or a no-objection declaration would significantly strengthen the title. You are advised to consult a lawyer for a proper title search and prepare a title report before finding a buyer.
Thank you for contacting us, if you have any further queries kindly do not hesitate to contact again. Thankyou.
On the facts stated, you appear to have a reasonably strong position, but I would not advise proceeding with the sale solely on the basis of the society share certificate.
The important points are:
Your mother's Will need not necessarily be registered to be valid. An unregistered Will can be perfectly valid. The more important question is whether it was properly executed and attested as required by law. The fact that she signed at the end and two witnesses have attested it is therefore more important than the fact that she did not sign every page.
Since your mother died in 2019 and the society subsequently transferred the share certificate exclusively into your name on the strength of the Will, that is useful supporting evidence. Your brother's knowledge/consent is also factually helpful, although his mere knowledge is not necessarily equivalent to a formal relinquishment of his rights.
The principal concern for a purchaser will be title—not merely the society's share certificate. A prudent purchaser or his advocate may ask how your mother's interest in the flat devolved upon you and may scrutinise the Will, the original purchase documents, society records and succession documents.
Before selling, I would keep ready at least:
Original agreement/sale deed by which the flat was purchased;
Current society share certificate in your sole name;
Original Will, if available;
Death certificate of your mother;
Society's transfer/membership records showing transfer to you;
All relevant society correspondence/resolution concerning the transfer;
Latest property tax/maintenance records;
Encumbrance/search/title documents as applicable;
PAN/KYC and other documents ordinarily required for the sale.
Probate/Letters of Administration is the point that needs particular attention. Whether probate is required depends upon the location of the property, the applicable succession law and the circumstances of the estate. This should be checked before entering into a sale agreement because a purchaser's advocate may insist upon it even where it is not strictly mandatory.
The fact that your brother has not objected so far is reassuring, but if you want the title to be as commercially "clean" as possible, the possibility of obtaining an appropriate registered release/relinquishment/no-claim instrument from your brother should be considered, depending upon the exact title structure. Whether that is actually necessary cannot be determined without examining the original purchase document and Will.
So, I would not say that the Will's being unregistered or its not being signed on every page automatically makes the title defective. The real issue is whether the entire title/succession chain can be demonstrated satisfactorily to a purchaser and his title advocate.
Before putting the flat on the market, I would have the Will, original purchase agreement, society transfer papers and present share certificate examined together. That will determine whether you can proceed directly with the sale or whether one additional succession/title document would make the transaction substantially safer.
If there are no one who can challenge your will then there is no issue at the most you can execute indemnity bond
