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Understanding right of children over deceased mother's property

Saturday, February 10, 2018
By Ramesh S. Prabhu

Q. A flat is in the name of son (1st holder) and Mother (2nd holder).  2nd holder dies and there is no nominee to flat. After deleting 2nd holder's name, is it compulsory to add name of daughter as legal heir in the flat?
A.
When the flats are purchased in two names. In the absence of any record of the payment made by the parties or each person’s shares in the property is not mentioned in the document, it is assumed that both the owners have equal rights, title and interest in the property. In the present case, since son and mother had purchased the property in the joint name, both become equal owners. On the death of mother, assuming that father has already expired and there are only two surviving legal heirs i.e one son and one daughter, then mother’s share will go to both son and daughter equally as per the Hindu succession Act. Now, son will have earlier right of 50% and gets 50% of deceased mother’s share, making his total right in the property at 75% and daughter will inherit balance 50% of mothers right which is nothing but 25% of the right, title and interest in the property. In case, brother gives his share of 50% of mother’s right to sister by executing and registering the release deed, then sister can have 50% of the right over the property and 100% of the mother’s right can be inherited. Accordingly, the applications may be made to the society to include sister’s name in the share certificate after completing all the required formalities as required under the Bye-laws of the society.

Q. Can you explain 'tit-fit' areas used in MHADA land?
A.
When MHADA gives the lease of the land to the society, they give only the plinth area of the building with approximately 3 feet surrounding the building. Between two buildings, a port of the land remains with the MHADA and is not conveyed to any society. Such portion of the land title remains with the MHADA and is not conveyed to any of the societies are called ‘tit-fit’ land. When one of the societies goes for redevelopment, the land adjacent to the particular society, will be offered by MHADA to acquire as ‘tit-fit’ land which entitles the society to get additional FSI (Floor space index) or the society in order to get additional area, any area near its plot remains with the society may request the MHADA to give them for amalgamating with its already leased land. 

Q. A Co-op Society is going for Redevelopment. Land Area: 3L sq.ft. Current used Area: 1,77,000 sq.ft. Addional Area @ 50% offered by the developer to the society over and above the existing area. What will be total Built up Area? And whether we can expect more than 50% area?
A.
The total potential of a land in suburban is FSI, TDR and fungible FSI all together is 2.7. Therefore for a land area of 3 Lakh sq. feet, we can expect the total built up area as  8,10,000 sq. feet. The society needs to work out the feasibility report by engaging Project Management Consultant or the Architect.  The offer of 50% extra area seems to be little less as the use of present area is less than one FSI.

Q. If flat is given on Leave & License and flat owner wants to sell the flat, does the new purchaser need to enter in Leave & License if he wants to continue with the same tenant?
A.
Since only the owner of the property can give their property on leave and license basis, it is very much advisable that if a person has purchased the property where there is a tenant and the new owner wants to continue with the same tenant, the new purchaser should execute a new leave and license agreement and register the same. If such new leave and license agreement is not executed, the new purchaser will not be able to proceed against the tenant, if he does not vacate the same on the expiry of the license period.

(Ramesh S. Prabhu is Chairman, Maharashtra Societies Welfare Association)

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