In this blog post, Sourabh Makhija, from RDVV – Jabalpur describes a relinquishment deed as well as the process of registering a relinquishment deed.
Introduction of Relinquishment Deed
Many times it happens that a person dies intestate (without leaving a will or testamentary will) in such cases the property of that person is inherited by his/her legal heir. Then it’s up to the heirs as what they want to do with the said property. If the heir’s come to the conclusion of separation of property, then anyone of the co-owner (who is not willing to keep the property) can relinquish his share in favour of the other owner. This process of transferring property from one owner approving the other is known as “Relinquishment of Property”.
Meaning of Relinquishment Deed
Relinquishment deed is a legal document/instrument where a legal heir gives up or releases his legal rights in an inherited parental property for another legal heir such as his mother, son, daughter, brother, sister, etc.
The term relinquishment refers to the abandoning and surrender of the rights, title, and interest, by one co-owner of property for the other co-owners. The consequences of relinquishment of one co-owner’s share in property are the enlargement of the shares of the other co-owners.
Essentials Elements of Relinquishment Deed
- Legal document: Relinquishment deed is a legal document. Through this legal document, an heir can transfer or release his legal right of the inherited property.
- Consequences: The effects of such transfer of rights are the release of the share of one co-owner and the enlargement of the shares of the other co-owners.
- Irrevocable: A release or relinquishment deed is irrevocable even if it made without any consideration. For a valid relinquishment, the property must be owned by more than one person.
- Relinquishment cannot be done in favour of a 3rd person: Relinquishment of property can’t be made in favour of a person other than a co-owner. If a relinquishment is made in favour of a person who is not a co-owner, the transaction will be treated as a gift.
- Must be in writing: The relinquishment of right in the case of immovable property needs to be done only through a written document called relinquishment deed which must be signed by all the parties and witnessed by at least two witnesses.
- Must be registered: Relinquishment deed falls under Section 17 of the Registration Act, 1908 and hence, a release of rights in the immovable property must be registered. The registration takes place in the office of the sub-registrar within whose jurisdiction the property is situated.
- Consideration: A relinquishment deed can be done with or without any consideration.
- Easy process: A relinquishment deed can be made and registered in few days, and this process is not expensive.
Who can Relinquish Property
The relinquishment of property can only be done by someone who has a share in the property. In case there is more than one owner in a property, either of the co-owners can do relinquishment. For a valid relinquishment, the essentials of a valid contract are to be followed other than the compensation.
Illustration: A died intestate leaving behind his three sons. A was the owner of a land which after his death was inherited by his three sons. Later, one of the son X shows his interest for not keeping any share in the said property for which he offered relinquishment. The relinquishment deed was made in favour of other two owners. The relinquishment deed transferred every right of X in the property to his brothers.
In whose name can a property be Relinquished?
The relinquishment of property can only be done in the name of a person who is co-owner or co-sharer in the property. Or in other words, relinquishment of property can not be done in the name of any third person other than the already existing co-owner. Hence, for a valid relinquishment, the person getting the relinquished property must be a legal heir.
A property can also be transferred to minors; such cases will be governed by the Indian Contract Act, 1872.
Illustration: A died intestate leaving behind his three sons. A’s property was equally shared by the sons. Later, one of the son X because of some personal reasons relinquished his property to Z (his friend) for consideration which is not a valid relinquishment.
Difference between Relinquishment Deed and Gift Deed
|Relinquishment Deed||Gift Deed|
1. Relinquishment Deed is a deed by which one person releases or transfer his legal right to the property.
2. The property relinquished is always an inherited property.
3. The person in whose favour the property is relinquished must be the co-owner of the property.
4. Relinquishment may or may not require compensation. (something in return)
Gift Deed is a deed by which one person gifts his legal rights in the property to any person
The property gifted need not to be inherited property.
The person in whose favour the property is gifted can be anyone.
Gift does not require any compensation
Registration of Relinquishment Deed
As a relinquishment deed is a legal document by which a person formally gives up his claim to another person, the said deed must be systematically executed and registered as per Section 17 of the Registration Act, 1908.
For the purpose of getting a relinquishment deed registered it is advised to consult a lawyer who can draft the deed for you, and in case you know the legal methodology and terminology you can do that on your own. Following steps are to be followed to get a relinquishment deed registered:
- Preparation of Relinquishment Deed: A Relinquishment Deed is to be prepared on a stamp paper of Rs.100. Ensure that every detail of the relinquished property is mentioned in the deed.
- Present the deed before Sub-Registrar of Assurances: Once the deed is prepared on a stamp paper, it is submitted before sub-registrar of assurances within whose jurisdiction the property is situated for registration along with a registration fee which varies from state to state, but it is somewhere between Rs. 100 – Rs. 250 in every state.
- Witnesses and other formality: Signatures of two witnesses will be required to get a deed registered. Other documents such as passport size photos, identity proof (driving license, Adhar card, etc.) will be needed.
Is it possible to register a document at a person’s private residence?
Under Sections 31 of the Act, a provision has been made authorising the Registering Officer, on special cause being shown ( for instance if the person is physically handicapped ) to attend at the residence of any person desiring to present a Relinquishment Deed for registration and accept for registration such a deed, provided Registering Officer is satisfied that the particular cause shown as sufficient.
Format of Relinquishment Deed
This Deed of relinquishment is made and executed on this— day of —–, 2011 by —————–By Shri ________________S/o Shri ___________________ and Miss. ____________________ Daughter of Shri ___________________residents of _____________________________hereinafter called “the EXECUTANTS/RELEASORS:.
IN FAVOUR OF
Mrs. ___________________W/o Shri _________________________resident of ________________________hereinafter called the “RELEASEE”.
WHEREAS the Shri. _________________________son of Shri. __________________resident of _________________________________,was the absolute owner of Entire Second Floor of Freehold Property bearing No. ______________ built on Plot No. _______, in Block No _____
Built on a plot of land measuring ___________, situated at __________________, by virtue of Gift Deed registered as document no. _________in Add____Book No____Vilume No. _____ on pages _____to_____ dated ___________, in the office of Sub-Registrar, New Delhi (hereinafter called the said portion of the said property)
AND WHEREAS the said Shri ______________________intestate died on ____________ (Death Certificate enclosed) leaving behind the following legal heirs:-
SL. No. Names Age Relationship Address
WHEREAS consequent upon the death of Shri ____________________________, 1/3rd share each in the ________________of Freehold property bearing No. _______, built on Plot No. ____
In Block No. ________, built on a plot of land measuring ___________, situated at ______________________ New Delhi, has devolved upon the above legal heirs.
NOW THIS DEED WITNESSETH AS UNDER :-
Pursuant to their wish, as mentioned above, the Executants/Releasors out of natural love and affection and without any monetary consideration, hereby with to release and relinquish their ________share each in the__________ of Freehold property bearing No. __________ built on Plot no________, in Block No ________, built on a plot of land measuring _________, situated at _______________, in favour of Smt. __________________wife of Shri ___________as mentioned above, and hereby affirm and declare that they and their legal heirs shall have no claim, right, lien or interest in the entire _____________ of the aforesaid property and the same shall vest absolutely in the said Smt. ______________wife of Shri _________________, the Releases.
IN WITNESS WHEREOF , the Executants/Releasors and the Releasee have signed this Deed of Relinquishment on the day, month and year first mentioned above in the presence of the following witnesses:-
Relinquishment takes place when the person who is supposed to heir the property waves off his right by transferring it to someone else. A deed is just a binary contract with more complex collateral.
Deed of relinquishment will only be considered valid in following situations:
- The person relinquishing the property must hold an interest in the property.
- The property must be a joint Hindu family property (membership by birth) except the self – acquired property of the father (no membership right during the lifetime of father).
A relinquishment deed is irrevocable as it can only be set aside on the similar grounds a contract can be set aside.
Grounds for revocation of relinquishment deed
How to challenge a relinquishment deed
The grounds for cancellation of relinquishment deed are similar as that of revoking a contract (of course, there is no consideration and price involved in the deed), these are as follows:
- Undue influence,
Any other similar grounds
So, the deed can only be revoked when there is a lack of free consent and cannot be simply set aside on any other grounds as per your whims and wishes.
Secondly, both the parties must give their consent to the cancellation, that is, the person who relinquished his property and in whose favor it was relinquished. But in a situation where the beneficiary person is unwilling to cancel the deed, you can approach the civil court for cancellation of the deed.
Limitation period for challenging: Three years as per the Limitation Act. (Commences from the day when the right is being infringed).
Unregistered Relinquishment Deed
The unregistered relinquishment deed is not a valid deed in law and can’t be contested in court. As far as any transaction to immovable property shall be valid only when the deed executed, is registered by properly paying stamp duty and the registration charges.
Section 17 (1) b of the Registration Act mandated that any document which has the effect of creating and taking away the right in respect of any immovable property must be registered and section 49 of the Act imposes bar on the admissibility of an unregistered documents and deals with the documents that are required to be registered under section 17 of the act .
An unregistered relinquishment deed can also be challenged and declared void as registration is necessary and its absence makes the deed invalid. In Telugu Kishna Mohan and Another vs Smt. Boggula Padmavathi and others, it has been held that an unregistered relinquishment deed is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act.
Relinquishment Deed and the Rule of Spes Successionis Under Muslim Law
Chapter 6 of the Mulla’s “Principles of Mahommedan law” relates to the concept of transfer of spes successionis which has also been termed as “renunciation of a chance of succession.” It says that, the chance of a Mahommedan- heir apparent succeeding to an estate can’t be subject to a valid transfer or release.
- 6(a) of the Transfer of Property Act, also deals with the doctrine of Spes Successionis.
The Supreme Court has examined the applicability of the concept of ‘Spes Successionis’ in Shehammal v. Hasan Khani Rawther. The two important questions which came up before the Court in this case was:
- If the view of Doctrine of Spes Successionis, a deed of relinquishment executed by an expectant heir could operate as estoppel to a claim, which may open on the death of the owner of the claim.
- Whether a Muslim by means if Family Settlement can relinquish his right of Spes Successionis, when he has still not acquired the right in the property.
The Court in this case, watered down the concept that the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer on lease and held that renunciation of an expectancy in respect of a future share in a property in a case where the concerned party himself chose to depart from the earlier views, was not only possible, but legally valid. The Court referring to the case of Mt. Khannum Jan v. Mt. Jan Bibi, wherein it was held that “renunciation implies the yielding up of a right already vested.” For example, renunciation during the mother’s lifetime of the daughter’s shares would be null and void on the ground that a daughter does not get the right over the property before the mother dies.
The Courts have however, held that, “under the Muslim Law an expectant heir may be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued”
Now, on the issue of whether by means of family settlement can they relinquish the right of spes successionis, the Courts commented that, though the arrangements in a family are made to avoid any future dispute in the family, but a broad concept of a family settlement could not allow the relinquishment of spes successionis.
Nevertheless, the Courts pointed out a few exceptions as in the case of Gulam Abbas, like, by accepting consideration for a future share. Once, consideration for a future share is accepted, it could then operate as estoppel against the expectant heir to claim any share in the estate of the deceased on account of the doctrine of spes successionis.
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