Dealing with property transfer fraud
S.C. Vasudeva.
Q. I would like to know some facts of property transfer within family. I had bought a residential plot with two floors constructed on it in New Delhi through a Registered GPA in 2003. After that without my knowledge my wife got a notorised GPA, agreement to sell, will, receipt showing consideration of Rs 60,000 in July 2004 and another same notorised GPA and other papers with consideration of Rs 40,000. Actually no consideration was paid. After that she prepared a similar GPA, agreement to sell to her daughter from first marriage in 2010. I came to know about it in 2011 when she got the electricity meter changed in her name. After my complaint the CGRF reverted the electricity meter in my name. I am in possession of the property since 2003 and all related proofs are with me. The original papers of the property are also with me. The notorised papers that my wife got prepared in her and her daughter’s name are with them. In 2015 my wife expired and now my stepdaughter has filed a case for this property in court.
I want to know what is the law in this regard and can this property be transferred in my wife’s name without registered documents? Moreover, they mentioned consideration that was never paid.
What are my chances of winning this case? — Dinesh Kumar
A. It is stated in the query that residential property with two floors constructed thereon was purchased by you and a General Power of Attorney in respect thereof was registered in your favour in 2003. It has also been stated in the query that you have the original papers with you and also the documents to prove the payment made for purchase of the house. You have also stated that the possession of the house is with you. It seems your wife had conspired to create false documents whereby she wanted your step daughter to become the owner of the house. You should, therefore, seek advice from a criminal lawyer for filing a criminal case against your step daughter. You will also have to engage a civil lawyer for contesting the case filed by your stepdaughter. It seems you have a very good chance of succeeding in the court provided the documents stated by you in the query are available so as to prove that you are the real owner of the house and GPA etc. prepared by your wife are not genuine.
Do I need to open a capital gain account?
Q.I had bought a residential plot in Varanasi during 2003 for Rs 1.50 lakh only. I sold that plot for Rs 53 lakh in November 2016. The sale amount received in saving account through RTGS / NEFT. At present I have only one two BHK flat. My queries are:
- Can I use the sale amount for purchasing another flat or house or plot for construction of house?
- What will be the time limit?
- How much tax will I have to pay at this stage ?
- Do I need to open a capital gain account?
- In case I fail to utilise the amount in capital gain account within the specified period, what will be the tax liability ? — Rajesh
A. Your queries are replied hereunder:
In case you want to purchase another flat or a house, the amount of net consideration i.e Rs 53 lakh should be utilised for the purchase of a residential flat or a residential house within two years of the date of sale of the plot. The amount of Rs 53 lakh or a part thereof which is not utilised for the aforesaid purpose before the due date of filing your tax return is required to be deposited under capital gain scheme before the said date. In your case the due date will be July 31, 2017.
You are not required to pay tax if you choose to deposit the amount under the capital gain scheme and purchase a residential flat or a house within a period of two years from the date of sale of the plot by utilising the amount so deposited. In case the amount is not utilised for the purchase of a flat or a house within this period, the capital gain arising on the sale of the plot shall be taxable as a long- term capital gain in the year in which the period of two years expire.
In case you choose to purchase a plot by utilising the amount of Rs 53 lakh you will be liable to pay tax on the amount of capital gain arising on the sale of residential plot at Varanasi. The amount of capital gain in this case on the basis of indexed cost of Rs 3,64,471 would be Rs 49,35,529. Income-tax thereon @20.6 per cent would be Rs 10,16,719.
Who will be the legal heirs of unmarried aunt?
Q. My father's sister who was unmarried died intestate recently. Both her parents are no more. Only two of her brothers are surviving. Please clarify as to who will be her legal heirs in this case. Are only the living brothers the legal heirs or children of the predeceased brothers/sisters will also be entitled to become legal heirs as per the Hindu Succession Act. — Pawan Kumar
A.According to the Hindu Succession Act 1956, general rules of succession applicable in case of a female Hindu who has died intestate are specified in Section 15 and 16 of the said Act. The property devolves firstly on the sons and daughters (including children of any predeceased son or daughter) and the husband. Since your father’s sister was unmarried, the above provisions would not be applicable. However, according to rules laid down in Section 16 of the aforesaid Act, property would be inherited by the heirs of the father i.e. her two brothers simultaneously. This rule should apply even if the property was inherited by her from her father or mother.
Buying property from a private family trust
Q.One of my close relative intends to buy an apartment. The apartment is owned by a family trust consisting of the following persons.
- Settlor Grandfather
- Trustee No 1. Son
- Trustee No. 2. Daughter-in-law.
- Beneficiary Grand daughter
The term of the Trust deed is 18 years and it was executed on February 22, 1999. The Trust deed is not a Registered one and was executed on stamp papers of Rs 300 in accordance with the rates of Maharashtra Government Revenue department applicable at that time. The value of Trust property has been mentioned as Rs 10,000 and there is no mention of property/apartment details in this deed. Besides the usual terms and conditions of the deed, trustees have the power to purchase or sell the movable and immovable properties.
On completion of the term of 18 years the trust deed says it will be dis-positioned and the property will be transferred in the name of the grand daughter mentioned above. As of today this beneficiary is unmarried. This apartment which is proposed to be purchased by us is in the name of a private trust and trustees have told us that they are taking steps to transfer this apartment in the beneficiary’s name, who is now major and can sign the sale agreement. We seek your guidance as to:
The procedure of transfer of property in the name of a private family trust to the beneficiary.
Whether any resolution has to be passed by the Settlor and trustees, including the beneficiary. If so then where can we get such standard language which is fool proof to avoid any legal complications at a later stage?
Whether this apartment, which is registered with the Registrar of Assurances/Sub Registrar at Pune/Maharashtra will be first transferred in the name of the beneficiary by executing a fresh sale deed and registered in her name, or it can simply be transferred by resolution only.
After the trustees/private trust transfers the apartment in the name of their Daughter/Grand daughter of Settlor, she is competent to transfer the apartment in our name and there will be no legal hitch from the trustees etc.,
Do we need to obtain any affidavit from the Settlor or trustees or beneficiary to protect our future interest as it is a costly apartment and we wish to save our hard earned money and wish to obtain a clear title free from all encumbrances and future complications?
Whether the Trustees have to give any public notice before the transfer of property in the name of a private family trust to the beneficiary i.e. their daughter and grand daughter of the Settlor. — Lajpat Rai Thakral
A. The family trust deed should contain a paragraph which deals with the manner in which the property is to be transferred to the beneficiary on the expiry of the term of the trust deed. Transfer of property in the name of the beneficiary should be in accordance with the procedure so laid down. It would, therefore ,be advisable for you to obtain a copy of the trust deed so as to ascertain the manner in which the property is to be transferred to the grand daughter. The reply to your query with regard to the precautions to be taken before buying the property from the grand daughter should be evident from such procedure. It would not be possible to guide you until and unless the relevant trust deed has been carefully perused.
