Ask Mint Money | You can sell a property if there are no encumbrances on it

Ask Mint Money | You can sell a property if there are no encumbrances on it

I had bought a villa in Pune in 2002. Now I am moving to the US for good and want to sell this property. However, my brother, who had given me some money to buy this property, wants to keep the property. But I want to sell the villa and give him back the money along with interest. Is there a legal way to go about it?

—Indrajit

As long as (i) the title documents to the villa are in your name, (ii) your name also appears as the owner of the villa in the records of the applicable sub-registrar of assurances, (iii) there are no encumbrances on the property (for example, a mortgage) and (iv) there is no other contractual agreement between you and your brother or anyone else that prevents you from selling the villa, you are free to deal with the villa in any manner that you may choose. This would include your ability to sell the villa.

As per the relevant provisions of the Transfer of Property Act, 1882, a sale of tangible immovable property having a value of 100 or more can be made only by a registered instrument.

Part of the purchase consideration received by you upon the sale of the villa could be paid to your brother towards repayment of the money that your brother gave you at the time that you purchased the villa. A simple document could be executed between your brother and yourself, recording the fact that he had given you a certain sum of money to enable you to purchase the villa and that you have now repaid that sum of money in full (together with interest thereon) to your brother. This is solely to avoid any claims that your brother may make on you in the future. This document too would attract stamp duty.

I am 69 years old and my 58-year-old unmarried brother lives with me. Can I write a will wherein my brother is the owner of the house till he is alive and the property automatically goes to my children upon his death?

—D. Shah

As per the applicable provisions of the Indian Succession Act, 1925, you can draw up a will wherein you bequeath a life interest in the house to your brother and upon his death, your children will inherit the house. If such a bequest is made by you, then upon your death, your brother will be entitled to continue to live in the house. The only document that would be required is a will to be drawn up by you which clearly sets out your intentions and the bequests that you wish to make.

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Shabnum Kajiji is a Partner with Wadia Ghandy & Co. Advocates, Solicitors and Notaries

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