Transfer of ancestral property and registration of transfer deed

Transfer-of-ancestral-property-and-registration-of-transfer-deed-India

Transfer of immovable property results in the conveyance of property rights, i.e. title, rights, interest in the property by one person to another. 

The property can be transferred by the person having rights to do so. Generally, it is the owner of the property or the person authorized to do so. 

Any document showing the ownership of the property/land in the name of a person is a title deed. E.g. in case of sale of a property, sale deed is the title deed.

In the case of ancestral property, the ownership is verified from the record of the land registration department. 

What is the ancestral property?

Ancestral property is the property which has passed on up to four generations, including the owner, without any division. The coparceners (a small unit of lineal descendants of a common ancestor within the undivided Hindu family) have a birthright in the ancestral property.

Read More: Property rights of a wife after husband’s death

Only the Karta of the family (Karta is the head of the Hindu Undivided Family) has the right to alienate the HUF property which may include the ancestral property under certain conditions.

Property inherited from maternal ancestors or obtained by Gift, or Will is not ancestral property.

Whenever a person inherits an ancestral property, it is essential to get it transferred in the name of the beneficiary in revenue records or municipal records.

Modes of transfer and transfer deed:

There are various modes of transfer of immovable property like transfer by sale, gift, lease, and mortgage. The transfer takes place vide instrument called transfer deed. As per the nature of transfer, the deed can be sale deed, lease deed, mortgage deed etc.

Read More: Property rights of the second wife and her children

Transfer of ancestral land:

Ancestral land can also be transferred. The coparceners who have right over the ancestral property can transfer their respective shares or interest in the property. If the ancestral land is divided among the family members or there is a partition of the property, the property ceases to be ancestral. The share which each member gets after partition becomes the self-acquired property.

There can be a transfer of share or interest by coparcener (co-owner) without actual partition of entire ancestral land. In some parts of the land, consent of co-owners, i.e. the consent of other coparceners, is required. There are other areas where the consent of other coparceners is not needed.

A coparcener can also transfer his share to another coparcener. 

However, in any case, the transfer deed must be registered as per Law.

Registration of transfer deed:

The registration of transfer deed can be optional or mandatory as per the Indian Registration Act.

Read More: Property Rights of Women as per Hindu Law

 In some cases, it is mandatory like: 

  • sale of immovable property if the value of the property exceeds Rs 100
  • Lease of immovable property if the lease period is more than 11 months
  • Gift deed

If the registration is compulsory, the transfer is not valid if the deed is not registered. It is always better to get the transfer deed registered. The process of registration helps to:

  • Create evidence of ownership
  • Records the transaction-related to a property for future references

The transfer deed transfers the right or interest in the property to another person called transferee. For a valid transfer, the deed must be registered as per Law. The land registry, i.e. the department for registration records the ownership for the public. Once the document is registered as per Law, it becomes the title deed, i.e. document showing the name of the person holding the title of the property. 

The property rights are mentioned in the record maintained by the land registry department.

Read More: The married daughters’ right in mother’s self-acquired property

How to cancel Illegal Registration of ancestral property

How to cancel Illegal Registration of ancestral property

Registering a property means recording the ownership of the property and other transactions related to it in a public record.

Ancestral property is a one in which a person has a share which accrues to him by birth. If a person is entitled to get a share in the ancestral property, he cannot be excluded from it. A father cannot exclude his son from the ancestral property although he can gift his self acquired property to anyone. 

Ancestral property can not be divided or gifted or transferred, excluding the descendants/legal heirs having right to it.

For registering ancestral property, share and title of each family member must be clear.  The property is partitioned and transferred in the name of each descendant as per the share. The partition deed is registered, which confirms the ownership of the share.

Illegal registration can occur in numerous ways. Some of the most often used methods are:

  • Forgery – Signatures are forged, or fake documents are prepared
  • Impersonation- Someone else appears before the Registering Authorities as Owner
  • Misuse of POA – People give power of attorney to family members for effecting transactions on their behalf. POA can be misused. POA has to be very specific and clear.
  • Misrepresentation/Suppression of facts

NRIs are easy targets for illegal registration as:

  • They are not present in India physically for every transaction related to their property
  • Regular inspection of the property is not conducted.
  • Family members are generally given POA who misuse the same

Illegal Registration: The way out

The first step is the cancellation of illegal registration. It is advisable to get legal advice on the issue as cancellation requires careful analysis of the documents and filing an appropriate lawsuit in a civil court.

After cancellation, the next step is mutation.  It is essential to update the municipal records or land records so that the name of the owner is reflected correctly in public records.

Also Read: How to save title of your property from illegal occupants?

A police complaint can be filed for cheating and fraud.

A complaint also lies to the Revenue Authorities or concerned local bodies (Sub Registrar) bringing to their notice the illegal registration and requesting for cancellation of illegal registration.

Corruption in the office of registration is also a significant issue which leads to illegal registration of property. A criminal complaint can be filed with the police against the erring official.

How to cancel a registered document:

Once a document is registered, it is cancelled by filing a suit for cancellation in Civil Court.

The court satisfies itself regarding the illegality in the document.  Cancellation is not ordered at the whims and fancies of the party seeking it. The element of fraud, misrepresentation etc. which renders the document illegal must be present. There must be reasonable chances that if the document is not corrected, it will result in harm to the party.

The suit can be filed within three years from the date of knowledge of the fact of the document being illegal.

The court sends a copy of the decree passed in the lawsuit to the Registering Authorities which record the fact of cancellation of the registered documents in the record and correct the record.

Registering Authority is not empowered to cancel the registered document. The cancellation deed is also registered.

Property rights of a wife after husband’s death

Property rights of a wife after husband's death

Many women are not clear about their rights in the property of their husbands. The rights of a wife in her husband’s property after his death depend upon:

  • The kind of joint ownership of husband and wife
  • nature of property of the husband – self-acquired or ancestral

Joint ownership

In case of property jointly acquired by both husband and wife during marriage, the nature of ownership determines the rights of a wife in the property after the death of the husband. The joint ownership can be: 

Tenancy in common

There is no right of survivorship. When one co-owner dies, his share goes to the legal heirs.

Joint Tenancy

When one co-owner dies, his share passes on to the surviving co-owners. 

Tenancy by entirety

Tenancy by entirety is a special kind of joint tenancy which takes place only between husband and wife. In this kind of ownership, both the spouses cannot pass their share in the property to a third person without the consent of others. This tenancy can be terminated either by mutual agreement, legal separation or by the death of one of the spouse.

Presumption of ownership:

Unless specifically stated in the document of property, the law presumes tenancy in common between the co-owners. However, in case of a married couple, the presumption is for the tenancy by entirety unless otherwise specified in the deed.

It is always advisable to disclose the nature of the ownership in the title document to avoid legal hassles later.

Read: Do grandchildren have a right to their grandfather’s property?

Distribution of property to wife and other legal heirs:

A. If the joint ownership is –

  • Tenancy by entirety or joint tenancy with survivorship-then after the death of the husband the property goes to the wife.
  • Tenancy in common – the legal heirs of the deceased husband will become co-owners and the share in the property will devolve as per provisions of Hindu Succession Act or personal laws or India Succession Act as applicable.

B. In case of joint property of husband and wife : If the fact is established that

  • the property is acquired by the husband but held in joint names- the entire property devolves among legal heirs including wife as per the applicable law.
  • the property is purchased by the wife with her earnings alone and held in joint names -the entire property belongs to wife.

the property is acquired by the husband and wife together with both having contributed towards the purchase, the property is divided as per the contributions made and then from the share of the husband, the wife will get her share as a legal heir as per applicable law.

Read: Can a father give his property to one son?

Self-acquired and ancestral property:

  • Under Hindu Law:  the wife has a right to inherit the property of her husband only after his death if he dies intestate. Hindu Succession Act, 1956 describes legal heirs of a male dying intestate and the wife is included in the Class I heirs, and she inherits equally with other legal heirs.

           If the property is:

Self-acquired-    If husband dies intestate, wife inherits as Class I heir

Ancestral –     Wife is entitled to get a share out of the share of her husband’s property, but she has no right to claim partition. She gets her share as class I legal heir when the partition of the ancestral property is affected.

Read: Division of property between brother and sister after father’s death

For people of faiths other than Hindus– the succession to property is governed by personal laws or The Indian Succession Act.

  • In the case of Christians, the property is considered as self-acquired despite the mode of acquisition and wife has a right to the property of deceased husband along with other legal heirs.
  • Muslim law also recognises the right of the wife in the property of the deceased husband – generally one-fourth of the property if no children and one eighth if children are there.

Division of property between brother and sister after father’s death

Division of property between brother and sister after father death

Under Hindu Law, brother and sister are at par when it comes to the devolution of property of a father dying intestate.

When a Hindu male dies intestate (without leaving a will), his property devolves upon the legal heirs as per Section 8 of the Hindu Succession Act, 1956. The legal heirs are as follows:

  • Class I heirs
  • Class II heirs (if no one in class I)
  • Agnates (if no one in class II)
  • Cognates (if no one in agnates)

Class I heirs as mentioned in the Schedule of the Act are:

  • Son
  • Daughter
  • Widow
  • Mother
  • Son of a pre-deceased son
  • Daughter of a pre-deceased son
  • Son of a pre-deceased daughter
  • Daughter of a pre-deceased daughter
  • Widow of a pre-deceased son
  • Son of a pre-deceased son of a pre-deceased son
  • Daughter of a pre-deceased son of a pre-deceased son
  • Widow of a pre-deceased son of a pre-deceased son
  • Son of a predeceased daughter of a predeceased daughter
  • Daughter of a deceased daughter of a predeceased daughter
  • Daughter of a predeceased son of a predeceased daughter
  • Daughter of a predeceased daughter of a predeceased son

There are 16 class I heirs. Eleven are females, and 5 are males.

Rules for distribution of property among brother and sister (both are class I heirs):

  • Class I heirs get their share simultaneously and to the exclusion of others.As per the rules, son and daughter (brother and sister) are entitled to equal share in the property.

e.g. a father dies leaving behind a mother, a widow and one son and two daughters, his property would be divided into five equal parts, and each of these legal heirs will get one-fifth share.

Stepson or stepdaughter: Daughter and son must be natural or adopted children. Stepchildren are not included in the definition of son and daughter under the Act.

  • Children of predeceased son or daughter will take between them one share, e.g. If the daughter is predeceased and has two children, then in the above example, the property is divided into five parts, and one-fifth share of the deceased daughter will be shared further by these two children equally.

Ancestral or self-acquired property

The daughter (sister) has equal right as a son (brother) in the ancestral as well as the self-acquired property of the father.

Under Hindu law, there is a concept of coparcenary. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations with the eldest male member as the head and his male lineal descendants as coparceners. After the amendment of 2005 in the Act, the daughters are considered as coparceners and have equal right in the ancestral property as a son.

Marital Status: Marital Status of the daughter (sister) makes no difference.

Date of birth of a daughter (sister): The Amendment of 2005 came into effect on 09.09.2005. The daughters born before or after this date are considered as coparceners.

If the daughter is not living on 09.09.2005, her children are entitled to get a share in ancestral property.

If the father is not living on 09.09.2005, the daughter cannot seek partition of ancestral property.

Testamentary succession: However, in case of self-acquired property of the father, he can make a will of the same as per his desire, and the property bequeaths to the person named in the will.

In the case of ancestral property, a Will can be made by a father once he has acquired his share.

Can a father give his property to one son?

Can a father give his property to one son

The property has most of the time been a bone of contention among the family members. Between a father and his children, the distribution of property can cause problems if the father has to make choices and distribution is not equal. It is always advisable to get timely legal advice in property matters and place all documents in order.

A father’s right to deal with his property has to be exercised as per the provisions of law:

  • Statutory laws
  • Personal laws

If the father has self-acquired property, he is free to deal with it as his children have no right to claim it during his lifetime. If he dies intestate (without leaving a will behind), all children are entitled to get it as legal heirs.

However, if the property is ancestral he cannot deal with it freely as per his wish as all his children have a share in that property and his sons can claim partition of the same.

Read: Lawyer Nidhi Singh interview on Asian Voice

What is self-acquired property?

A property acquired by a person:

  • Purchased with own resources
  • As a gift
  • Through a testamentary document, e.g. will
  • Received as a legal heir – i.e. share of ancestral property received after partition or share of any other property acquired as a legal heir.
  • When a Hindu dies intestate, his property devolves as per Section 8 of the Hindu Succession Act, and such property which comes in the hands of a legal heir becomes his self acquired property.

Distribution of self-acquired property of a father:

  • A father is within his rights to give the self-acquired -property to his one son to the exclusion of other children.
  • During his lifetime, his children have no right to claim it. He can pass the same to his one son by gift or by will.
  • However, if another son has contributed towards the purchase of self-acquired property of the father and he can prove his contribution, he has a right in the said property. Then in such a situation, a father cannot pass the self-acquired property to one son excluding the son who has contributed.

What is the ancestral property?

  • A property which has passed on undivided up to four generations of male lineage is called ancestral property. The property should be four generations old. A person inherits the property as a descendant.
  • The property inherited from father, grandfather or great grandfather becomes ancestral property.
  • The property inherited from mother, uncle, grandmother or any other relative is not ancestral property.
  • The property received as a gift or through a will is not ancestral.

Distribution of ancestral property of a father:

  • In an ancestral property, all the sons have a right by birth and therefore, the father cannot give the ancestral property to one son to the exclusion of others. After amendment of 2005 in the Hindu Succession Act, even daughters are coparceners and have a right in the ancestral property.
  • A father cannot freely give the ancestral property to one son. In Hindu law, the ancestral property can be gifted only under certain situations like distress or for pious reasons. Otherwise, the ancestral property cannot be given away to one child to the exclusion of all others.

For Muslim and Christians, there is no concept of ancestral property. The property can be given to one son as per the limit permitted under personal law for Muslims.

For Christians, the property is considered as self-acquired despite mode of acquisition and rights are governed as per the Indian Succession Act, 1925.