• Transfer/acquiring property after brother's death

My brother passed away in 2005 intestate and was unmarried. His legal heirs are me, my parents and my sister who is married. He had a property in his name ,the same is to be transferred to my name as none of the other family members have any objection in doing so, pls advise what is the correct procedure to transfer ...will just a single Release deed suffice. 
One more question is my brother and me are a joint owner of a property that we all currently reside in. Ever since his death i have been paying the dues to the bank since the same is on home loan. Now since he died intestate ,how does the property get shared between the legal heirs. Here again all the family members are willing to transfer their share to my name, will again release deed suffice here to complete. Will Release deed be a proper channel of documentation for the transfer purpose. Would highly appreciate your advise. thanks !
Asked 5 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1)you can obtain letters of administration from court in your name . Other legal heirs can execute consent affidavit in your name 

2)other legal heirs  can in alternative execute release deed or gift deed on your favour 

3) similarly for joint ownership flat other legal heirs can execute gift or relinquishment deed in your favour 
Ajay Sethi
Advocate, Mumbai
23315 Answers
1220 Consultations
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Insist on full cheque payment 

2) if at all any cash is received don't mention it in agreement 

3) agreement for sale must contain a clause within which full payment is to be made and consequences if purchaser fails to make payment 

4) clause can be incorporated that if purchaser fails to pay bakance amount within 3 months agreement would stand cancelled 
Ajay Sethi
Advocate, Mumbai
23315 Answers
1220 Consultations
5.0 on 5.0
1. The only legal heir of your brother is his mother. During the lifetime of your mother she succeeds to the exclusion of all other legal heirs. So your mother is free to execute a relinquishment deed in your favour.

2. The share of your brother in the joint property has devolved through succession on his mother who can transfer it to you only after obtaining permission from the bank as it is a mortgaged property. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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The sale deed has to be registered at the circle rate prescribed by the district collector whereas the consideration of sale could be higher. You are free to deposit the cash in the bank. The cheque by which the consideration is being paid should be mentioned in the sale deed.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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Hi
First all of the legal heirs of your brother (including you ) should sign a settlement(also called release/relinquishment deed) deed where in all of the other legal heirs agree to relinquish their rights on the properties so owned by your brother and thereby transfer the property to you. The settlement deed has to be registered at Sub Registrar office by payment of Stamp Duty and Registration charges. 
 
With reference to Jointly owned property,a separate settlement deed (also called release/relinquishment deed)has to be entered in to by the legal heirs of your brother  and registered at sub-registrar office after payment of stamp duty and registration fees.  However especially with reference to this property, you will need to discuss more as we need to see the sale deed/partition deed by which you and your brother became the owners of property. the reason is depending on the language of the deed, sometimes the property might have been transferred based on Either or Survivor. if this(either or survivor is explicitly mentioned) then you just need to mutuate the property in your name. Or else you need to enter in to a separate settlement deed

With reference to cash/cheque transaction- you need to mention both the cash component and cheque component along with the date of cheque etc. Better to show the cash and cheque component (all white) for the reason that you have a authentic source of income(Sale of property). 
Sale agreement does not have any expiry date. if the cheque issued by the buyer bounces, then the sale agreement does not become VOID. You have to file a civil suit for cancellation of sale deed and recovery of possession, a civil suit for recovery of money and also a case under 138 NI act for cheque bounce. 
So ideally settle for DD only
Hope this helps.
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
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As per Hindu Succession Act, 1956 a Hindu unmarried  man dying intestate, his properties shall devolve firstly upon his Class I legal heir namely his mother, if she is alive.
If there is no class I legal heir then the properties shall devolve on his class II legal heirs consisting father if alive.  If father is not alive then it would devolve on his surviving siblings, i.e. brothers and sisters. 
Thus, since your mother is living she will be the only person to inherit or acquire your deceased brother's property.
After acquisition she can transfer the same to you by executing a registered gift deed which will confer a marketable title to you on the property. 
No other procedure or process shall make you the owner of the property.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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At the time of executing a registered sale agreement you may receive certain amount as advance towards the sale consideration amount and the same may be mentioned in the said deed accordingly if it was by cash or by cheque/DD etc. 
Generally the time limit for a registered sale agreement is three years from the date of execution or if time has been mentioned as essence of contract then that stipulated time shall be the limit. 
Upon executing the registered sale deed, the sale agreement automatically becomes infructuous.
The mention about the cash and cheque in the sale deed shall be your convenience, you can mention the mode of cash disbursal towards the sale consideration accordingly. 
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0

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