This article is written by Gaurav Kumar, from Surendranath Law College (University of Calcutta). The transfer of property deed upon the death of the spouse is exhaustively discussed in the article.
In India, one of the spouses especially women is quite unaware about dealing with the finances and matters pertaining to the estate. So, after the death of either of the spouse, they come under threat of losing their rights from the property to their relatives in case of the absence of the knowledge of the transfer of deeds. Since the real estate and property matters in India are a little complex, most of the time people don’t have the knowledge regarding the legal technicalities.
In India, the transfer of property is regulated by the Transfer of Property Act, 1882. So, the transfer of the property depends upon the nature of the deed to the property, means how the property was transferred to the deceased, and whether he was owning it jointly with the wife or separately; whether the property was inherited or the ownership of the property was obtained by purchase; whether the deceased had created any last will or the testament on the name of spouse or there exists no will or testaments.
The property owned by a person can be of two types one is ancestral and the other is what is acquired through one resource. The ancestral property is the property that is inherited by the legal heirs of the persons, whereas the property acquired through sale deed is the property acquired by the person investing his own earned resources. For the acquired property the person has unfettered vested right to will it anyone or provide it to his legal heirs.
The transfer of the property shall totally depend on the nature of the ownership of the property. In this article, we will specifically discuss every nature of the ownership and how the property is transferred in each case, once the spouse dies.
Process of transfer of property deed
In India, the real estate property (immovable one) is transferred by the way of three instruments. Transfer of property by a way of sale deed, transfer by the way of executed will or partition deed/settlement deed in case of hereditary nature of the property, transfer through gifts deed and the transfer of property through a way of relinquishment deed or release deed. However, in the case of death of a spouse, the property can only be transferred in two ways. One is through partition deed or settlement deed in case no will or testament is created by the deceased spouse. And second is through the will deed executed by the person before his/her last death.
However, the said instrument will totally depend on the nature of the ownership of the property.
Where the property is jointly owned
Most commonly the property is owned by the couple jointly with the right of survivorship. This is most common in the marital home. In such a case, if there is a death of one of the spouses the property automatically transfers on the name of the surviving spouse. This is outside the probate process and doesn’t require any kind of deed. For the purpose of shoring up the ownership interest in the estate, one needs to check if the property is owned jointly with the right of survivorship. The right of survivorship automatically transfers the right of ownership after the death of one of the spouses.
After the death of the spouse, one needs to obtain a certified copy of the death certificate from the hospital, mortuary or the appropriate authority. Now, one needs to visit the office of the registrar of deeds with the certified copy of the death certificate and the existing ownership deeds and file both together for the purpose of confirming the ownership rights in the property upon the death of a spouse. These documents can also be used as evidence in the court of law while any kind of dispute arising in future with respect to the ownership of the property.
In case, the deceased held the property in trust, and the deed of the property shows that the ownership of the property had transferred to the trustee of the trust. In such a case, the property shall be transferred according to the terms and conditions of the trust. The process of the transfer of the property done on the basis of term and conditions as provided under the trust shall be outside the probate process.
Where the deceased has executed the last will or testament
In case, the property is not owned jointly, and one of the spouses has executed his/her last will or testament before death, the property shall be administered and division of such property shall be carried according to his wish stated in the will. The person who has executed the will is called a “testator”. However, the will is executed only in the property which has been acquired by the person by purchase (sale deed). In the case of ancestral property belonging to the Hindu Undivided Family, the will can’t be created as the coparcener, heirs up to four generations have the contingent rights over the ancestral property as provided under the Hindu Succession Act, 1956.
In such cases, the ownership right is acquired through the probate process that begins in the court at appropriate jurisdiction. The probate/ letter of administration is a copy of the will certified by the competent authority of the court. The executor needs to obtain the probate before trying to execute the will. In case the person dies without nominating an executor in the will, the beneficiaries need to obtain the “Letter of Administration” from the competent court for the purpose of administering the will. However, the registration of will is optional at the choice of the testator and not compulsory.
In case of a single heir of the testator, the person (heir) needs to approach the competent court with the certified copy of the death certificate of the testator, will, and ownership deed of the property, for the purpose of establishing the ownership right in the estate. In the case of more than one legal heirs, the probate process is done before the competent court and the property is administrated according to the will. Once the rights of the beneficiaries are decided they need to approach the sub-registrar office with the will, probate and the property ownership document for getting it transferred on their names. The Provisions of the will is regulated through testate succession provided under the Indian Succession Act, 1925.
Property belonging to descendent with no last will executed or testament
In case one of the spouses died without executing a will or testament and the property belongs to the decedent, it will be administered according to the provisions of the Hindu Succession Act, 1956. In case of absence of a will, the legal heir or coparcener needs to get a no-obligation certificate from the other heirs or successors along with the affidavit. In case any kind of monetary benefits is paid to the successor or the other heirs, it needs to be mentioned in the transfer document. In case of having equal coparceners or heirs if the person the property is equally distributed with mutually between the parties on a deed of partition or Panchnama. The deed of partition along with the lineage list certificate (describing legal heirs) obtained from the municipal corporation and the property document is submitted before the office of the Sub-registrar.
The registration of the land documents is transferred in the name of the legal heirs after the verification of all the documents. Now, the next step comes is the mutation of the property. It refers to the transfer of the title of the land in the land and revenue records of the respective state.
The mutation is done for the purpose of paying property tax to the government, and transfer of the property to the new owner. The mutation also adds evidentiary value to the property in case any dispute arises. The process of mutation is done in the nearest Municipal Corporation Office or Gram Kachahari of the Block Office. The documents required vary from state to state but it commonly includes “proof of being a legal heir”, partition deed or Panchanama if executed” and the identity proof of the person (Aadhaar, voter-id card, ration card) and other such documents as required by the respective state government.
- Where property is executed through will/testament: Will/testament, Probate or Letter of Administration, Certified copy of death certificate of the testator, property deed and the identity proof of the person(s) for which the transfer of will is executed.
- Where property is executed through the succession laws: Partition deed or Punchnama deed executed among the legal heirs, Succession Certificate, No-obligation certificate from the other successors/heirs along with the affidavit, lineage list certificate, identity proof of the heirs on which the title of the property shall be transferred and other such documents as required by the respective state government.
Legal provisions pertaining to the transfer of property deed
Transfer of Property Act, 1882
The Transfer of Property, Act 1882 deals with the transmission of the property among living people for the purpose of their devolution on the Earth. The transfer of property act doesn’t cover the entire areas of property transfer. It deals with the transfer of the immovable properties by the act of parties through the way of sale, exchange, gift, actionable claim, mortgage and lease. The major point to be noted is that the act only deals with the transfer of immovable property and not movable property. There are only certain exceptions in the act with respect to the transfer of the movable property. The act also completes with the Indian Contract Act, 1872 with respect to the lawful consideration for the transfer of immovable property. The transfer of the property must be done through an instrument attested and registered to avoid any kind of arising legal dispute in future.
Hindu Succession Act, 1956
The Hindu Succession Act, 1956 deals with the transfer of the ancestral property to the heirs or coparceners after the death of the property of the “Hindu Male”. This act exhaustively provides the categorisation of the legal heir in a different class. According to Section 10 of the Hindu Succession Act, the distribution of the property shall be done provided with the legal heirs class. The spouse of the deceased shall be liable to get one share of the total property.
For example, if a person leaves behind himself his wife W, two sons A and B and two daughters C and D each of them shall be entitled to get an equal share (1/5) of the total property. In case of more than one widow(s), one share shall be provided for all of them. Further, the sons and daughter of each of the equity shareholders shall also be liable to get equal shares from the share of their parents. After the 2005 amendment in Section 6 of the act, the daughters have been provided with equal rights with the sons of the deceased in the ancestral property. In the case of coparcenary property and liabilities and disabilities shall be equally shared among the daughter and the son.
Indian Succession Act, 1925
The Indian Succession Act, 1925 deals with the provisions and process of the succession in case the will is there. The testamentary or testate succession falls under the provisions of the Indian Succession Act, 1925 and is thereto regulated according to it. Under testate succession, the property is equally divided among the spouse and children of the deceased person as administered according to the will. This act is applicable to people practising different religious faith and beliefs. The testator can execute his will any time during living or before his death. The will executed before the death of the person is known as the last will.
The person appoints an executor in the will before he dies. The executor is the legal representative of the person who administrators the will according to it. After the death of the person, if the legal heirs of the person have no objection with respect to the will, they executor moves the will ahead for the probate process. Once the court approves the probate, the property can be divided according to the will of the testator.
The wife is the legal heir of her husband/spouse. The property whether ancestral or self-owned has the right to be transmitted to its heirs. Generally, during living, the spouses together own the property jointly with the right to survivorship. In such cases, the ownershi[p right of the property is directly vested just after the death of the spouse. Where the will/testament is executed by the testator the estate is divided in accordance with the executed will.
In case of the absence of any will/testament the Hindu Succession Law or other succession laws of different religion come into effect and the property is divided according to the provisions of the said act. Since the spouse belongs to Class I heir of the person so, according to succession laws he/she shall be entitled to get one share of the property. Either of the spouses must have knowledge of the status of the property in order to get the transfer done in a hassle-free manner.
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