Two owners can be tenants-in-common or joint tenants
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I purchased a flat from the Delhi Development Authority (DDA) and self-occupied it in 1989. After 10 years of purchase at the time of registering a conveyance deed for making the flat a free- hold property, my wife’s name was added in the deed as joint owner as per rules. Should we make a joint Will or two separate Wills or some kind of gift deed or relinquishment deed, so that the share of the spouse who dies first, may be inherited by the surviving spouse automatically and he or she may not be required to go in for succession certificate or other legal complications to claim the share of the deceased spouse? The surviving individual who inherits the property by way of such a Will or deed may then be in a position to gift or will the whole property to our sons in equal proportion to avoid any legal complication at a later stage.
We have assumed that both you and your wife are governed by Hindu laws of succession. It is not clear whether your wife’s name was added to the conveyance deed of the flat only for the sake of convenience (in which case you would be entitled to bequeath the entire flat as per your wishes) or whether your wife’s name was added as a joint owner (with equal rights).
If it is the latter, then it is important to understand the nature of ownership of the flat, i.e., if the flat is owned by you and your wife as joint tenants or as tenants in common.
The nature of ownership may be determined from the conveyance deed and the facts applicable at the relevant time, since this would also determine the succession of title.
If you and your wife hold the flat as joint tenants, then on the demise of either of you, your share in the flat would automatically devolve upon the other.
Whereas, if you and your wife hold the flat as tenants-in-common then, on the demise of either of you, the half share of the deceased tenant-in-common in the flat, would devolve upon the legal heirs of such deceased tenant-in-common, in accordance with the rules relating to intestate succession under Hindu law or as per the Will of the deceased tenant-in-common.
From your query, however, it is clear that irrespective of how the flat is held today, it is your joint intention that upon the death of either spouse, the flat vests entirely in the other spouse and upon the death of both of you, the flat will devolve upon your sons in equal proportion.
Therefore, assuming that you and your wife own the house as tenants in common, in order to ensure that your respective interests in the flat (as tenants in common), devolves upon the surviving spouse in the event that either one should predecease the other, you and your wife should each execute a Will bequeathing your share in the flat to the other.
A Will may be a better option, as a gift deed and relinquishment deed are transfer documents that operate intra vivos (i.e., between living people) and would, therefore, take effect immediately upon the execution thereof during your lifetime. Whereas, a Will operates on the death of the testator or testatrix. The Wills, duly executed, in accordance with the provisions of the Indian Succession Act, 1925, would secure the rights of the surviving spouse in the flat.
The type of the Will executed (i.e., mutual or joint) is not relevant for the purpose of transmission of your interest in the flat to the other, so long as the Will(s) are duly executed and contain an unequivocal intention to bequeath your right and interest to the surviving spouse.
You may also please confirm with the DDA whether any additional documents are required by them (as per their internal procedures) for recording the transmission of title to the flat in their records.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
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