Lawfarm Team
Asked January 15, 2016

inheriting property under Hindu Succession Law

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We are four siblings, I am the eldest. My mother died in September this year without leaving a will. Her name and mine are together as owners of 5 acres of property near Mumbai. Her name is the first name.  How does Hindu Succession Law apply here? My specific questions are —  1. Will the land title automatically go to the only remaining name on the deed (namely, mine)?  2. If it is automatically inherited by all her surviving children, what is the process for three of them renouncing their claim, so that the title reverts to me? They are not interested in this property.  3. What would be the rightful legal costs I should expect to incur in such a case?

Answer 1

To address your first question:- The succession of the property jointly owned by your deceased intestate (one who has passed away without leaving a will) mother and you depends upon the form of joint property ownership. This joint property ownership may be in the form of joint tenancy or tenancy in common.

In case of joint tenancy your mother’s interest would be automatically transferred to the joint tenant, i.e., to you.

Now, for the joint property to be a joint tenancy it has to be specifically mentioned in the deed. Moreover, Hindu Law very rarely appreciates the existence of Joint Tenancy. The Supreme Court held that ‘A joint tenancy is unknown to Hindu law except in the case of a coparcenary between members of an undivided family.[1] This means that the concept of joint tenancy is applicable mostly to the members of a joint family (in case of Hindus) who have equal share over the property.

However, if the co-ownership is in the form of ‘tenancy in common’, each owner possesses equal right or share of the property. Hence, after the death of an owner her share is inherited as per the Hindu Succession Law.

All the above discussed provisions are applicable for a Hindu female dying intestate. Hence, keeping this in mind, if the co-ownership is not explicitly stated to be a joint tenancy, your mother’s share in the property would be inherited by her heirs as provided under S.15 (1) of Hindu Succession Act, 1956[2]. This would mean that you, the joint owner of the said property, would retain your share of the property and the share held by your mother would be distributed among you and other heirs of your mother.

 

Coming to the second issue: The inheriting heirs can transfer their shares through ‘gift deeds’ under S.122 of Transfer of Property Act, 1882[3]. This ‘gift deed’ would help to transfer the shares without any consideration (money). However, there exist two essentials for successful completion of this process. Firstly, the official acceptance of the donee, i.e., the person to whom the transfer is made (in this case: you) is the pre-requisite for the completion of the gift deeds. Secondly, registration of the gift deeds with the sub-registrar is mandatory as per S.17 of the Registration Act, 1908[4], and S. 123 of the Transfer of Property Act[5]. Without these steps the ‘gift deeds’ would be invalid.

 

The stamp duty applicable on registration of these ‘gift deeds’ is regulated by Article 34 read with Article 25 of The Maharashtra Stamp Act[6]. This stamp duty can be from 2% to 5% of the existing market value of the property depending upon the locality of the property and also upon the fact that the ‘gift deeds’ are being commenced between family member.  

 

Nowadays it’s the Guideline Value or Value fixed by the LRDC / Revenue Officer or District or District Sub Registrar which is taken as the value for calculation of Stamp Duty (as shown in the Non Judicial Stamp paper on which the deed is printed), at the percentage rate that may be applicable to that particular State, provided its equal to or more than the 'market price' agreed between the vendor and the vendee.

 

This means that the amount of the property fixed by the respective authority can determine the value of stamp duty which can be charged at the rate of rupees ten for every five hundred or part thereof on the market value of the said property. The lesser value of the stamp duty, from the above mentioned amounts, is charged upon the registration of the ‘gift deeds’.

 

 

[1]Boddu Venkatakrishna Rao & Ors vs Shrimati Boddu Satyavathi & Ors 1968 AIR 751, 1968 SCR (2) 395

[2]Available at: http://indiankanoon.org/doc/1202482/ , last accessed on 12th January, 2016.

[3]Available at: http://indiankanoon.org/doc/881325/ , last accessed on 12th January, 2016.

[4]Available at: http://indiankanoon.org/doc/561156/ , last accessed on 12th January, 2016.

[5]Available at: http://www.advocatekhoj.com/library/bareacts/transferofproperty/123.php?Title=Transfer%20of%20Property%20Act,%201882&STitle=Transfer%20how%20effected, last accessed on 12th January, 2016.

[6]Available at: http://igrmaharashtra.gov.in/SB_PUBLICATION/DATA/Schedule/TheMahStampAct-Schedule-1.pdf , last accessed on 12th January, 2016.

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