The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the following Q&A which was published by the Mint Newspaper on 16th February, 2022 and the online edition of the same can be found here.
Is mutation of property possible through unregistered Will?
— Name withheld on request
In India, registration of a Will is not mandatory, and unregistered Wills are perfectly valid. Therefore, any property forming part of the Will would be bequeathed in favour of the legatee mentioned therein without the requirement of registering the instrument. Depending on circumstances, after the demise of the testator, you may be required to obtain probate (i.e. if the immovable property is located in Mumbai, Kolkata, or Chennai; or if the Will is executed in Mumbai, Kolkata, or Chennai). If no probate is compulsorily applicable, a succession certificate may also suffice, depending on the local district rules in question. Subsequently, the property records can be mutated. Please speak to your attorney and check if probate would be applicable in your case.
I would like to know whether a release deed for immovable property is a valid document and whether it can be challenged later. If the document is treated as valid document then in which Act or section it is specified the same?
— Amish
A release deed would be governed by the Transfer of Property Act, 1882. A release deed, also known as a relinquishment deed, for an immovable property is a valid, legitimate document recognized under law in India. A release deed involves a transfer of right, title, and interest in the immovable property, and is considered valid only when it is signed by parties in the presence of witnesses, adequately stamped and registered. The grounds for challenge by the counterparty, or indeed any third party, would be dependant on the facts at hand – to help prevent one key ground of challenge, it is worth checking the legal title of the counterparty to sign the release deed in the first place and release his / her rights.
The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the following Q&A which was published by the Mint Newspaper on 16th February, 2022 and the online edition of the same can be found here.
Is mutation of property possible through unregistered Will?
— Name withheld on request
In India, registration of a Will is not mandatory, and unregistered Wills are perfectly valid. Therefore, any property forming part of the Will would be bequeathed in favour of the legatee mentioned therein without the requirement of registering the instrument. Depending on circumstances, after the demise of the testator, you may be required to obtain probate (i.e. if the immovable property is located in Mumbai, Kolkata, or Chennai; or if the Will is executed in Mumbai, Kolkata, or Chennai). If no probate is compulsorily applicable, a succession certificate may also suffice, depending on the local district rules in question. Subsequently, the property records can be mutated. Please speak to your attorney and check if probate would be applicable in your case.
I would like to know whether a release deed for immovable property is a valid document and whether it can be challenged later. If the document is treated as valid document then in which Act or section it is specified the same?
— Amish
A release deed would be governed by the Transfer of Property Act, 1882. A release deed, also known as a relinquishment deed, for an immovable property is a valid, legitimate document recognized under law in India. A release deed involves a transfer of right, title, and interest in the immovable property, and is considered valid only when it is signed by parties in the presence of witnesses, adequately stamped and registered. The grounds for challenge by the counterparty, or indeed any third party, would be dependant on the facts at hand – to help prevent one key ground of challenge, it is worth checking the legal title of the counterparty to sign the release deed in the first place and release his / her rights.
For further information, please contact:
Rishabh Shroff, Partner, Cyril Amarchand Mangaldas
rishabh.shroff@cyrilshroff.com
