Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting and can engage in transfer or property . Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger.
Since you are a co-owner/co-sharer with your mother. you could ask her to transfer the property via a "sale deed”/ “conveyance deed”, which is the main document in a transaction of sale and purchase of property. A sale deed acts as the main legal document that evidences the sale and transfer of ownership of property in favor of the buyer from the seller.
Under the Registration Act, a sale deed of property needs registration at the jurisdictional sub-registrar's office. All the parties need to be present at the time of registration. All documents should be presented in original. In case the purchaser cannot be present personally before the sub-registrar, he can give a Power of Attorney to his agent to sign and present the documents on his behalf. The photos of the purchaser, thumb prints and signature are entered on the sale deed. The documents should be presented for registration within four months from the date of execution. If it is not done within four months, a grace period of another four months is allowed on payment of a penalty. A maximum penalty of 10 times the registration charges may be levied by the registrar.
The liability to pay the stamp duty as well as the registration charges lies with the purchaser of the property. All statutory payments like cess, property tax, water charges, electricity charges, society charges, maintenance charges etc should be paid by the seller before the execution of the sale deed unless the parties (in this case you and your mother) agree otherwise. The seller should also obtain the requisite clearances, approvals and permissions to transfer the property prior to execution of the sale deed. However, as you are both related, there are other more suitable options available than a sale deed. Therefore, if she is ready to transfer her share of property in your name, then you can do this via-
1. Gift deed-This document allows you to gift your assets or transfer ownership without any exchange of money. To gift immovable property, you just have to draft the document on a stamp paper, have it attested by two witnesses and register it. Registering a gift deed with the sub-registrar of assurances is mandatory as per Section 17 of the Registration Act, 1908, failing which the transfer will be invalid. Besides, such a transfer is irrevocable. Once the property is gifted, it belongs to the beneficiary and you cannot reverse the transfer or even ask for monetary compensation. Transferring a property via gift deed in Delhi, also involves-
(a) The property being gifted has to be valued by an approved valuer.
(b) Stamp duty and transfer duty @ 4% if the donee is a woman and @ 6% if the donee is a man. Registration fee is 1% of the total value+Rs.100/- pasting charges.
2. Relinquishment deed:- This document is quite different from a gift deed, though the legal implications are the same. You can use this instrument if you want to transfer your rights in a particular property to another co-owner. Such a transfer is also irrevocable even if it is without any exchange of money. As with all documents related to the transfer of immovable property, a relinquishment deed needs to be signed by both parties and registered. The stamp duty is similar to that for a gift deed. However there is no discount for relatives, nor are there any tax benefits. Also, both stamp duty and tax will be applicable only on the portion of the property that you relinquish, not on its total value. You can also use this deed to transfer movable property without registration, but it is typically used for immovable property.
Therefore, it is advised that you consult your mother and accordingly ask her to either gift her share or relinquish it in your name .
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