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?
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
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.
