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Home >Money >Personal Finance >If one of tenants-in-common dies, the share devolves on legal heirs

I am a Hindu male and I have two sisters. My father and mother own a plot jointly. Sadly, my father passed away without any Will. My mother and sisters wish to transfer this plot to me without any monetary consideration. Is a relinquishment deed from my sisters to my mother the best way to move forward? Once my mother is the single owner, can she give it to me using a gift deed or a Will?

—Sanjeev Sharma

I have assumed that your parents held the plot as tenants-in-common and not joint tenants. If they held the plot as joint tenants, then upon the death of your father, his share in the plot would have vested absolutely in your mother and, consequently, she would be its sole owner. In the event that your parents held the plot as tenants- in-common, then on the death of your father, his share in the plot will devolve upon his heirs.

As per the Hindu Succession Act, 1956, when a male Hindu dies intestate i.e. without leaving a Will, his property devolves (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased, as per Section 8 of the Act. As you, your mother and sisters fall within the class of relatives specified in class I of the Schedule, each one of you will be entitled to one share in your father’s share in the plot.

Your sisters can execute a deed of release or a deed of gift, releasing or gifting their respective shares in your father’s share in the plot to your mother (by way of a gift) or to your mother and you as co-owners of the plot (by way of a deed of release). Your mother can, thereafter, bequeath her share in the plot to you under her Will. Alternatively, she can convey her share in the plot to you (by executing a deed of gift or deed of release in your favour), if she wants to transfer the entire plot to you during her lifetime.

The deed of release and the deed of gift will have to be duly stamped. You will need to ascertain the stamp duty payable on the deed of release and the deed of gift, as per the stamp laws applicable in the relevant state where the property is located. The deed of release and the deed of gift will have to be registered at the office of the sub-registrar of assurances within whose jurisdiction the property is situated, under the Indian Registration Act, 1908.

The registration of a Will is optional and a Will does not require to be stamped.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries

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