Respected Sir/Madam, I am writing to address the matter of transferring a flat/property to the legal heirs in accordance with the wishes of my deceased grandparents. My grandparents, who resided in the adjacent building, lived with my late deaf and mute uncle (Central suburb of Mumbai 1 room kitchen flat). Prior to their passing, they had submitted a society nomination form requesting that, upon their demise, the flat be transferred to their deaf and mute (single, unmarried) son (my uncle), myself, and my wife. This decision was based on the care we provided to them after my father passed away due to cancer. Following my both grandparents' death in 2010, we completed all necessary nomination formalities through a lawyer (as instructed by society). We obtained signatures from my two aunts, my sister (the three children of my grandparents), and made a public notice through the newspaper. The society, following these formalities, added our three names (my uncle, myself, and my wife) to the share certificate. Consequently, we received maintenance bills in these three names without any issues. Unfortunately, my deaf and mute uncle passed away in 2023 due to post-COVID complications. Last month, we approached the society to remove my uncle's name from the share certificate, leaving only my and my wife’s names. However, the society committee members are divided in their opinions. Some members believe it is a straightforward transfer since my uncle was unmarried and we were his sole caretakers and closest family members. Others argue that we need to go through the entire legal heir procedure again for my uncle's 33% share of the flat, which would involve my deceased father's siblings and my sister, despite their previous consent through affidavits and a public notice. We seek legal advice on the appropriate steps we and the society committee members should take in this situation. Your guidance would be greatly appreciated. Yours sincerely,
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Dear Sir,
Since your uncle died intestate ie without living a will, you do not become the direct beneficiary with respect to his 1/3 rd share in the said flat even though you may have done this procedure after your grand parents’ demise.
You and your wife would have to seek NOC from you other aunts and uncles for the transfer and also give a public notice.
this has become a procedure followed by most societies.
regards,
Property is transferred once in your names with no objections from other legal heirs. The property is in the name of you, wife and uncle after due consent of other legal heirs. Legal heirs by giving their consent have relinquished there rights if any in the property. Said rights cannot be reviewed under any circumstances. What the society has to ascertain now is if there are any legal heirs of deceased uncle apart from you who can claim the property. A public notice in newspaper seeking objections from any possible of uncle should establish your right over the property.
on uncle demise his 33 share would devolve on his legal heirs ie his siblings
you need to obtain their consent for transfer of uncle share in your names
The property transferred in the society records will not confer title to the nominees. They can have share certificate on their names only towards the shares of the society but the property shall devolve equally on all the legal heirs of the original owner.Upon intestate death of the original owner, the nominee of the property can only receive the proeprty on behalf of the legal heirs and transfer the same to the legal heirs.
The NOC given by the siblings your deaf and mute uncle on a plaint paper cannot be considered as a proper relinquishment of their rights in the property.
The newspaper publication is just a public notice and cannot be consider as a legally valid to recognize the relinquishment of their rights.
Now as you people are not the legal heirs of either the your uncle nor the legal heirs of your deceased grandfather, you cannot claim any rights or interests over the property especially if the legal heirs of your grandfather are still living.
The society is right in their opinion to obtain a release deed or a gift executed in yor favor by the legal heirs to your grandfather.
Therefore if you go to the root the original transfer to your names itself is invalid therefore to avoid any litigation in this regard you may better follow the instructions as passed by the society in this regard failing which you may be facing danger of losing the entire property too.
The deceased are Muslims
So the Shariat law will apply
From your query it seems that they had 4 children ie 2 sons (your late father and uncle) and 2 daughters (your paternal aunts )
As per Shariat the son takes double the share of the daughter
Thus after your grandparents demise their flat will go to their children in the following ratios:
Son 1 - 33.33%
Son 2 - 33.33%
Daughter 1 - 16.67%
Daughter 2 - 16.67%
After your father's demise his 33% would devolve on you and your sister as follows:
You - 22.22%
Your sister- 11.11%
Now your grandparents had made a nomination in favor of your uncle, yourself and your wife
It is settled law that a nominee only holds the property in trust for the heirs of the deceased member. The nominee does not get any title over the property unless such nominee is also an heir of the deceased
After your grandparents demise, their 4 children were entitled to the flat. One son (your uncle) was a joint nominee with you and your wife.
So all 3 of you were holding the flat IN TRUST for the other heirs of your grandparents (your father and 2 aunts), your uncle doubled up as a joint nominee as well as a co-heir
Just by entering name in the share certificate the title does not get completed.
Ideally an heirship certificate ought to have been obtained for declaring the heirs of the deceased
Now your uncle died. So his 33.33% would go to his heirs. As he was unmarried, his share would devolve on his siblings as per Shariat.
It appears from your query that your father predeceased your uncle
So the uncle's share would go to his 2 sisters. Whether the children of the predeceased brother would get any share from their paternal uncle's estate, I need to check. Will get back.
However please note that after your uncle's demise , an heirship certificate should be obtained for declaration of his heirs, so that the title of the persons to whom the property is transferred ultimately , stands completed and there is no issue in future at the time of selling the flat
Also the view of few committee members that the procedure of devolution of uncle's share to his heirs, is the correct legal view
The view that upon demise of the joint shareholder, the surviving joint shareholders automatically become the exclusive shareholders is not correct.
The flat is held by the parties as tenants in common (co owners) and not as 'joint tenants' (where upon death of any joint tenant, the right survives to the surviving joint tenants). There is a difference between the 2 concepts. In a society , the flat , when held by more than 1 person, is held as tenants in common.
Dear Client,
Nomination allows the nominee to hold the property but does not confer ownership rights. Whereas, In Legal Heirship Actual ownership rights are transferred according to the legal heirship or a will, if available. Since all the necessary formalities were completed after your grandparents' death, including affidavits from legal heirs and public notice, this needs to be revisited in the context of your uncle’s share. Obtain a legal heir certificate for your deceased uncle. Alternatively, you may need a succession certificate from the court to manage the transfer of your uncle's share. Collect the death certificate of your uncle, affidavits, legal heir certificate, and any previously obtained NOCs. Apply to the society to update the share certificate, including the removal of your uncle’s name. Ensure that your application to the society is comprehensive and includes all necessary legal documents to avoid any disputes. Should you require any further clarification or assistance, please do not hesitate to contact us.
- Since, your uncle was also the joint owner /sharer in the said property , then after demise his share can be claimed by other legal heirs as well.
- As per law, If an unmarried person dies intestate , the first right over his property is of the parents.
- Further, in case both parents are living, it is divided equally, and if only one parent survives, the property is divided between the parent and the siblings, and if both parents are dead, the property is divided between the siblings.
- Hence, for his share the consent of other legal heirs are needed.
