• Jointly owned flat - now mother has died - what formalities

My mother died in Dec 2013. She is survived by my father, me, my younger brother and younger sister. We had an elder sister who died about 10 years ago without any heirs.

My father and mother were joint owners of a flat in Mira Road. This flat was to be bequeathed to me as my brother and sister have been given other flats.

What is to be done now to transfer it:
1. to my father solely and then have him gift it to me or my daughters.
OR
2. to add my name in place of my mothers in the society's records.

Regards

Anil
Asked 2 years ago in Property Law from Mumbai, Maharashtra
1) you have 1/8th share in the flat on demise of your mother . 

2) since your mother died intestate ie without a will on her demise flat can be transferred in name of your father on you and other legal heir s  furnishing NOC to society . 

3) you and other legal heirs can execute Relinquishment deed/ Gift deed  in favour of your father . 

4) your father can bequeath flat in your name by will . 

5) for adding your name in place of your mother other legal heirs have to give NOC in your favour . execute relinquishment deed/ Gift deed  in your favour
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
your demised mother was having 1/2 share in the flat and since she left leaving behind you your brother and younger sister you will get 1/8th share in the flat. since all others have been gift flat ask them to release either a family settlement or gift or release deed in your favour and ask you father to gift you keeping life estate in your favour.then get NOc from all heirs and include your name in the society
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Hi,
 You can do the transfer  in two ways.

1. Get the NOC from your dad , sister and brother and  transfer the 50%  share i .e the share of your mother in your name by applying for the joint membership in the society.  At the same time you can ask your father to make a will and bequeath his 50% in your name.
2. transfer the 50% of your mother's share  by taking NOC from all other three legal heirs and a gift deed from your dad for his part of 50%. This will  make you a single owner immediately. whereas the WILL will be effective only after your father's death. 
 3. If your  dad is agreeable a gift deed will be better as the release deed cost you more in terms of stamp duty .
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
It would not be necessary to have the share of your deceased mother transferred to your father to have it to come to you.If the other siblings are agreeable have them execute a relinquishment deed in your favour  or with NOC from all have their shares transferred to you and the father  can gift to you the 50% to you.
If the father chooses to bequeath his share  bya will it will come to you only after his death
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
your father can sell his share only without the consent of your sister and brother. otherwise they also must sign in the sale deed only if they permits you can get the amount by gift from father and no  objection for the same if you need the format of the relinquishment deed feel free to call me by opting consultation. They have to give a power attorney  to any one. i will give you the format of that also if you need.they GPA holder can sign o their behalf for registration. for relinquishment deed stamp duty is 3%.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1) no your father cannot sell the flat . as on date he his 50%owner of flat only . 

2) on receipt of NOC  50%of flat share can be transferred by society in name of your father but your father would only be trustee for all legal heirs . your brother /sister can later claim share in said flat 

3) you have to contact a local lawyer . get gift deed/ relinquishment deed drafted by him .

4) your younger sister can  come down to India for execution purposes . in the alternative she can give POA to any of her family members  

5) for gift deed stamp duty is 2%of market value of flat as per ready reckoner rates if gift is made in favour of close family relative . 
6) for relinquishment deed it is Rs 200 if executed in favour of family members in respect of ancestral property
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
A. Generally, after the demise of any person, the mutation can be done by submitting a death certificate of the previous owner and right would be transferred to existing legal heirs. Hence society has to follow this procedure after passing a resolution in a General body meeting.

B. In your case, your mother 50% Share would be transferred to you even after release the right by the all respective legal heirs in favor of your father and later you will get a 50% share If your father is ready to execute gift deed in favor you.

C. You can obtain General Power of Attorney from your younger sister and once you received GPA it should pay sufficient stamp duty as per the Indian stamp act. So you can complete said procedure else you have to wait till come to India.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
Hello,
Just because the society transfers the share by an AGM it does not make your father the absolute owner and hence he is not entitled to sell.
Gift Deed is executed for no consideration and your father can currently make a gift Deed of only 50% that belongs to him
This is why all the children have to execute a relinquishment deed that thre is no future possibility of anyone staking a claim.
Your sister abroad can give a General Power of Attorney to any one of you who can do the needful on her behalf.She does not need to be in India.
Take help from a local lawyer as he will be able to draw up the required documents.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. Your father is te owner of 50% of the flat, so he can not sell the entire flat,

2. The balance 50% of the flat which was owned by your demised c mother is now equally shared by your father, you and your brother and living sister,

3. For getting the property, you shall have to enusre that your father gifts his share of 50% of the flat and your siblings and father can also execute and register their share in the balance 50& of the flat.
Krishna Kishore Ganguly
Advocate, Kolkata
12092 Answers
229 Consultations
5.0 on 5.0
Hi,
Now he cannot sell the flat. he can sell Only after transfer of the mother's  50%share .  This can happen only when all the children who are the legal heirs of your mother give NOC to transfer the mother's share into his name. 
     Get the transfer document done by a lawyer , NOC, indemnity bond, membership application  and other society transfer forms. As I have mentioned already if you are ready to pay the stamp duty gift deed /release deed will be another option.
Since your siblings are not in town, you can prepare NOC and send to them to sign and transfer it in dad's name hen can go ahead withe sale.
Like in  the bank account either of the survivor policy is not legal, the society cannot do that, no purchaser will  buy the flat as the title will not be clear.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0

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