• Title clearance

Hi
Mr A purchased a single unit in 1978. He died without will in 1981. At that time society was not formed. Mr A had 2sons, 1 daughter and a wife. Sons and daughter gave application to transfer the flat on their mother name. In 1989 soc was formed and hence a certificate was issued to mother. In 1991, one son name was added as associated member. In march 1995 they made applications for remaining 2 to become associate memebers. Which soc accepted and their names were added behind the share certificate. In July 1995, they all ask soc to divide flat into 2 flats. In builder and mr A agreement, two flats are shown but with single flat no. Soc did this by adding 3 names in existing certificate and issue another certificate with all 4 names. Later my dad and my grandmother purchased both the flats. They made total 8 agreements. 2 with each person and paid individually. My grandmother died and in her will she gave me the flat. Now we are in the process of selling both the flats. A buyer is saying that title is not clear as associate members do not have the right to sell property. The recitation on new agreement has missing links. But my argument is dont look them as associate memebers. They are heirs of Mr A and they have not surrender their rights on the property when they asked builder to transfer the flat on their mother name. We paid all 4 to buy their rights. Associate member or joint members question does not arise. 
Kindly help
Asked 3 months ago in Property Law from Greater Mumbai, Maharashtra
Religion: Hindu
1) on demise of father each legal heir had one third share in property

2) did son sand daughter execute relinquishment deed for transfer of flat in mother name . society would not have transferred flat in mother name without asking for relinquishment or gift deed 

3) was any letters of administration obtained from Bombay high court as father died intestate ? 

4) once son and  daughter have relinquished their share in flats they have no right title interest in the property

5) mother could have executed gift deed   to transfer share in flat to her children 

6) associate member is no co owner of flat 

7) purchaser is right that associate member  has no rights to sell the property 

Ajay Sethi
Advocate, Mumbai
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Unless the heirs of Mr.A executed a  deed of relinquishment in favour of one heir i.e widow of Mr.A their share remained intact. Mere transfer of share certificate in favour of mother does not make her the absolute owner of the property. The heirs had an indefeasible right to sell the flats. What the prospective buyer is saying is incorrect. 
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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1) if no relinquishment deed has been executed both sons and daughter would have share in flats as legal heirs 

2) it would have been advisable to obtain letters of administration from HC as father died intestate 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Now we are in the process of selling both the flats. A buyer is saying that title is not clear as associate members do not have the right to sell property. The recitation on new agreement has missing links. But my argument is dont look them as associate memebers. They are heirs of Mr A and they have not surrender their rights on the property when they asked builder to transfer the flat on their mother name. We paid all 4 to buy their rights. Associate member or joint members question does not arise. 

The buyer A is right in his claim because the property devolved on all the legal heirs of the deceased and nobody relinquished their rights in the property but made transfer of name on their mother's name in the society. Which means all of them are joint owners or co-sharers. 
Thus all four of them should have executed a joint sale deed in favor of the buyers i.e., your grandmother and your father. which was not done, instead the buyers got sale agreements separately from each vendor for the jointly held or co-shared property, therefore the link document is missing, i.e., the partition deed for having partitioned the properties among themselves to sell the properties individually, thus the new buyer is claiming this missing link document. 
Dont bring the legal jargons namely associate members in this becasue it hs no relevance in the alienation process. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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No letters of administration obtained from Bombay high court as father died intestate 

Since there are no documents saying children have relinquished their rights, they are sill owner. Each has signed seprate deed saying that they are 1/4 owner of the flat and selling their 1/4 right.
The absence of letters of administration and the partition deed makes the impact here.

What is the basis for taking it granted that these are the only legal heirs to deceased who died intestate, also why nd how did the individuals identify their respective share in the property if they have sold their individual 1/4th share in the property by a separate sale deed?
The legal questions with regard to tracing of proper and marketable title has to be answered if raised by the buyer. 
T Kalaiselvan
Advocate, Vellore
14057 Answers
127 Consultations
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