Jointly held property in India and how to sell it

I moved to New Zealand a few years ago and am now a citizen of the country. Before my marriage, I purchased a property in Varanasi with my father as a co-owner. I made all the payments, and the property was registered in our names. Given that I now reside in New Zealand and considering my father's advancing age, I would like to understand the implications of selling the property. If I sell it now, or if something happens to my father in the future, will I have full rights to the property, or will my father's share be distributed among my siblings? Will I be able to claim full rights on the property? I am a Hindu as per law.

-Name withheld on request

First, let's explore the scenario where you decide to sell the property immediately. In this case, both you and your father would need to consent to the sale. The proceeds from the sale would then be divided proportionally based on your respective ownership shares. You will have to consider things such as capital gains tax in India, foreign exchange regulations, etc.

Alternatively, your father can also make a will that clearly states that the property you purchased is willed to you.

Also Read: How to create a foolproof will to ensure a smooth inheritance

However, in the event of your father's passing without a proper will, the portion of the property owned by him will be subject to the provisions of Hindu Succession Act (HSA) and will be ideally divided between class I heirs which include son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, etc. 

Your father’s property will be divided among your father’s legal heirs, which may include your grandmother, your mother and your siblings. In such a scenario, the property sale will require approval from your father’s legal heirs.

To secure your interests and establish exclusive ownership of the property or its proceeds, you may consider requesting a gift deed from your father to transfer his portion of the property to a specific individual, such as your spouse or child or to yourself. This will not only protect your rights in the property but also grant you the right to sell the property.

Given the complexities involved, it's strongly recommended to consult an Indian lawyer specializing in property and inheritance laws. They can provide tailored advice based on your specific circumstances and help you navigate the legal processes involved.

Neha Pathak, head of trust & estate planning at Motilal Oswal Private Wealth.

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