• Transfer of flat to mother on father's demise

Hi,

Our flat is currently in my father's name (as per share certificate). He passed away two months ago and we need to transfer flat to my mother's name who is a nominee by my father. However, the flat was originally purchased by my grandfather who had nominated my father on his death. After grandfather's death, society transferred flat to my father's name after my father provided a notarized NOC from my grandmother along with an indemnity bond. Now society is asking us to provide NOC/release deed from my grandmother, uncles and aunts, myself and my siblings before transferring flat to my mother's name as they say that these people still have rights over the flat as per Hindu Family Act. All my uncles and aunts live abroad and it is not easy for us to obtain these documents. Is the society correct in asking for this even though my mother is a nominee for the flat on my father's death? Also, once flat is transferred in my mother's name as she is a nominee, will there be an issue from a legal perspective if we decide to sell the flat or if the building goes into redevelopment? What is the the correct process to ensure that the flat is transferred to my mother completely as an owner so that only she has rights over it and not any of our extended relatives? My mother will prepare a will to sort out inheritance between myself and my siblings. Additionally, she will be nominating me for this flat once the transfer is done in her name.

Thanks in advance.
Asked 7 months ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) nominee is only trustee for legal heirs

2) transfer of flat in nominee does not entitle nominee to sell the flat 

3) society is justified in seeking gift deed or relinquishment deed by other legal heirs for transfer of flat
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
Hi,
Society is not authorized to transfer any property to anyone and a nominee is just a caretaker of the property not owner. There is difference between ownership and nominee. The ownership of said flat was never transferred to your father for the simple reason that society does not have legal power/authority to transfer the ownership right. All you need is "Heirship Certificate" issued from the district court of the jurisdiction where this flat is situated. For this all your father's brothers, sisters presence is required since last owner was your grandfather. Contact a local lawyer.
Rajni Sinha
Advocate, Mumbai
273 Answers
25 Consultations
4.8 on 5.0
mere nomination does not create any right in the property so society is correct. if you do not know their address then you can give an undertaking, if they do not make claim within  7 years then it shall be automatically transferred in your mother's name.  
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
The society is right as nomination is not in derogation of law of succession. On the demise of your grandfather his property has devolved through succession on all his heirs i.e widow and children. The share of his deceased children has further devolved on their children. The title can be absolutely transferred to your mother only if the other heirs execute a relinquishment deed in her favour. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Basically this property was purchased by your grandfather and upon his intestate death, the property devolved equally among all his legal heirs, though he had nominated your father.  The nominee in such transactions/situations is a mere trust on behalf of the legal heirs to receive the property and disburse them to the legal heirs. 
During his lifetime your father transferred shares or society only on himself by producing NOC from grandmother and his other siblings, whereas he has not got a registered relinquishment or release deed in his favor from other legal heirs of your grandfather.
It is quite natural that to transfer the legal rights and shares of the society in respect of this property, a proper relinquishment deed executed by all of them entitled to a share in the property is very much essential.
Therefore the society is right in demanding the same. 
So first get the procedures carried out properly to get the property transferred to your mother's name  legally and then decide about further course of action.
T Kalaiselvan
Advocate, Vellore
13944 Answers
127 Consultations
5.0 on 5.0
1) society can transfer flat in nane of nominee but since nominee is only a trustee she cannot sell sell the flat 

2) other legal heirs can execute POA in favour of relative in India to execute relinquishment deed have it attested before Indian consulate 

3) your mother can apply for letters of administration from Bombay high court as your father died intestate 
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
1. Your mother's name can be incorporated in the share certificate but this will not have the effect of transferring the title absolutely to her. 

2. The heirs who are resident outside India may execute a GPA in favour of any of their relatives within India to authorize him to execute the relinquishment deed for and on their behalf. The GPA has to be attested at Indian Consulate and then registered in India before it can be acted on by the agent. The cost will be the fee of your lawyer and registration charges.

3. Your mother is entitled to reside in the property.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
1) As my mother is a nominee, is she not allowed to get her name added on the share certificate? If not, what is the point of making the nomination in the first place? It is my understanding that the society is bound to deal with the nominee as per the law and complete the formalities if my mother submits an application for the same. This process is a bit confusing and a bit of clarity would definitely help.

The nominee is just a trust on behalf of the legal heirs of the deceased. The nominee will be right person to receive and disburse the property to the legal heirs or successors in interest out of the estate of the deceased. This is law of the land which you cannot challenge.  So acquiring the shares is a different subject to be dealt with as per the law governing the acquisition of shares of the deceased by the legal heirs as per the bye-laws of the society.




2) If my grandfather's legal heirs live outside India, what is the most convenient and cost-effective method to obtain a registered relinquishment or release deed from them in my mother's favor? Do they need to approach the Indian Embassy/Consulate abroad to make this document or can we make it here, send it to them abroad for signature and then receive it back here for submission? Or is there some other process that needs to be followed? Also, what would be the cost associated in getting this work done?

There is no exception in law whether you stay outside the country or inside, the rules meant for this transaction are to be complied with accordingly.
Alternately, the legal heirs can execute a special power of attorney in favor of their close and confident relative in  India to act as their power agent and execute a registered release deed relinquishing their rights in the property on their behalf before the concerned registrar's office. 
The said GPA deed can be executed by the principals in the country of their residence,get it attested by an official of the Indian consulate or Official of Indian Embassy or Indian High commission, or it can be notarised by a local Notary public of that country, to be sent in a sealed cover addressed to the concerned Registrar in India through the power agent , who shall produce the same before the jurisdictional registrar, upon which the registrar shall after getting the signature of the power agent after proper verification of his identity,  get the power of attorney deed registered by obtaining the applicable registration charges and stamp duty, etc, shall allow the agent to execute and register the said relinquishment deed on behalf of the principals.
The above shall be an alternate suggestion.  The cost involved in this shall be notified by the person who you may engage to get the task done. 




3) If the process of obtaining the registered relinquishment or release deed from legal heirs of my grandfather takes time, what will be the state of the flat that is currently in my father's name (as per the share certificate)? As a nominee, what is my mother entitled to do until this paperwork is complete and submitted?

The property shall be under your mother's custody until a proper and legal disposition is done on it. 
T Kalaiselvan
Advocate, Vellore
13944 Answers
127 Consultations
5.0 on 5.0
if they are agreed to issue relinquishment deed they can execute it and registered it before the Indian consulate after payment of requisite fee. that deed is deemed to be registered in India because Indian consulate is deemed to be the land of India. 
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0

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