The following article was first published in the Mint newspaper on 14th February, 2023. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.
A woman sold her share of the ancestral property in 1960. Can her three children, all of whom were born after the sale, have any claim in the ancestral property?
—Name withheld on request
Your query infers that the ancestral property was partitioned in 1960 and pursuant to such partition, the woman transferred her entitlement before the birth of three children. Once the ancestral property is partitioned, it ceases to have the character of ‘ancestral property’ and becomes ‘self-acquired property’ in the hands of the family member who has received it, which gives such family member an unfettered right to deal and/or dispose of such property.
In this case, given that the woman transferred and sold her entitlement received pursuant to the partition of the ancestral property, her children born after such transfer do not have the right to claim any right to the property sold by their mother, as the same had become her self-acquired property by virtue of the partition.
I want to gift my flat to my daughter. Should I gift the flat now or make a will and bequeath it to her after my death. Do I have to pay stamp duty on these transactions and then get it registered? What would be the most cost-effective way of getting this done?
—S Madan
For the lifetime gift of immovable property such as a flat, the gift deed will have to be duly stamped and registered with the office of sub-registrar of assurances. The quantum of stamp duty will depend upon the state and location where the flat is situated.
Alternatively, the flat can be bequeathed to your daughter under your will – but this transfer will then only happen after your death and the applicable post-death formalities and probate (if applicable) is completed.
Fortunately, a will does not entail payment of any stamp duty—so from this narrow perspective, this is more cost effective. As you seem to have only 1 heir, a will regarding the property might be more suitable for you.
However, if the will is made in Kolkata, Chennai or Mumbai or if the will is made outside these territories but the flat is situated in any of these territories, a probate of the will shall be required to be obtained which will entail payment of court fees.
We recommend consulting your attorney who will be able to quantify the costs involved in both options post reviewing the requisite documentation which will help you take an informed decision.
