Nikhil Chachra

Nikhil Chachra

Nikhil has 17 years of work experience and has worked across different organizations in diverse roles including a Software product company, Chamber of Commerce, Consulting company, an early stage Startup and a Social Development organisation. Nikhil specialises in events and outreach management, marketing communications, managing PR and media, government affairs and policy advocacy. He is currently associated with a large Indian private sector bank as an Advocacy and Policy Engagement Specialist. He writes extensively on Cybersecurity, Internet Safety and Legal topics. Additionally, he also contributes his knowledge in video format. Nikhil has attended an Executive programme in Marketing Management from IIM Kozhikode. He is an Electronics Graduate from Delhi University and has completed his Masters in Business Administration from Guru Gobind Singh Indraprastha University, New Delhi.

3 POST
Testamentary Succession: Will it fair and square
Wills / Trusts

Testamentary Succession: Will it fair and square

It is hard to cope up when a loved one passes away, even harder when the deceased is the head of the family. Some plan for succession and create a Will while they are alive. However, many don’t foresee the need and leave it to chance. In such situations, it is tough for the rest of the family members to decide how the property Will be divided amongst and transferred to heirs. Who gets what, when and how remains some uncomfortable questions?

Testamentary Succession is the possible answer. This post shares insights on what does it mean, frequently used terms related to Testamentary succession under The Indian Succession Act 1925, characteristics of a valid Will, importance of having a Will and how Hindu Law governs Testamentary succession.

 

What is the meaning of Testamentary succession?

In simple terms, it is defined as the succession of property by a WILL or TESTAMENT as per applicable rules of law. As per Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law. 

An important point to note here is that the transfer of property happens as per provisions mentioned in the Will and not as per the inheritance law. However, if the Will is invalid or illegal then the transfer or devolution of property happens as per the law of inheritance. Alternatively, Testamentary succession is also referred to as right of inheritance.

 

Common Terms related to Testamentary Succession under Hindu Law

It is important to understand the frequently used terms that might sound complicated but are easy to interpret. They are:

  • Will – A legal declaration created by a person expressing clear intention or wish with regards to how his or her property and assets Will be transferred after death.

  • Testator – A person who creates his or her Will.

  • Executor – A person appointed by the Testator for executing the Will.

  • Administrator – A person appointed by the Court for executing the Will.

  • Attestation of Will – It is the process of signing the Will by two witnesses to verify the signatures of the executant.

  • Codicil – A legal document made by Testator and signed by two witnesses for making minor changes in the Will that has already been executed.

  • Probate – It is a documentary evidence of the appointment of the Executor and establishes the validity of the Will.

  • Letter of Administration – A certificate granted by the Court for appointing an Administrator of the Will.

 

Important Characteristics of a valid Will

A Testator must consider the following essential characteristics while creating his or her Will:

  • It is a written document expressing the testator's clear intentions or desire with respect to transfer of his or her assets or property.

  • It can be created by any person of age 18 years or above who is capable of entering into an agreement.

  • A person influenced by alcohol or fear or affected by illness or fraud cannot make a Will.

  • The Indian Succession Act, 1925 does not prescribe any specific format of writing a Will.

  • Minor unintentional errors in a Will – error in name spellings or details of property – does not alter the true intention of the testator.

  • The Testator should sign the Will which should be countersigned by two witnesses. In cases where the testator cannot sign, thumb impressions of the testator should be taken.

  • The signature of the testator should appear at the bottom of the page or at the end of the contents of the Will.

  • The witnesses to the Will should not be the beneficiaries themselves.

  • A Will comes into force only after the death of the testator.

  • And finally, it is not mandatory to make the Will document on a stamp paper and register it. The testator can also write it on a plain paper.

 

Why is having a Will important?

Each person wishes that his legal heirs stay a part of the cohesive family even after his or her death and that there are no fights over property matters. After all, fair division of property is a sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships and if done otherwise, it breaks relations forever.

 

It is for this purpose, making a fair Will comes very handy. The testator must clearly document his or her desires with respect to the assets that his legal heirs would carry out after his or her death. The Will must clearly state how the testator's property Will be transferred, to whom it Will be transferred, how much share of property Will be transferred to different heirs and so on.

 

Generally, a very common question arises here as to what happens if a person dies without leaving a Will behind? In such cases, the division and transfer of property happens by way of law. This is called intestate succession.

Which law governs Testamentary Succession?

In India, Testamentary succession is governed by The Indian Succession Act 1925 including the intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.

Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose their property and assets according to Muslim Law.

Conclusion

It is always advisable to write a well thought and a fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles for claiming their rightful share.

Legal Experts at LegalKart can help draft a Will that best suits your requirement. 

Conveyance Deed and Sale Deed: Two sides of the same coin?
Property

Conveyance Deed and Sale Deed: Two sides of the same coin?

It is everyone’s dream to be a proud owner of a house. Isn’t it? No matter big or small, after all your owned house is your own. While the process of buying a house in India is fairly complicated, it is a known fact that the business of real estate is marred with lack of transparency and corruption at the grass root levels. To make matters worse, there are hardly any government authorised information outlets from where you can get complete information about the process of buying a house and the legal formalities involved.

 

In the absence of this valuable information, the entire process of owning a house becomes even more nightmarish for prospective buyers, let alone knowing the difference between what a particular document means and why that document is important in the purchase process. Ask any individual who is going through the process and he or she will tell you certain realities that are horrifying to hear.

 

Nevertheless, we resolve to clear the air for you. By the end of this article, you will have a reasonable understanding about mandatory property documents like conveyance deed, sale deed, difference between these two documents and so on.

 

What is a conveyance deed?

 

It is a legal document that is used to willingly transfer the title of the property from one person to the other. The transfer of title can be in the form of either a gift or a lease or an exchange or a mortgage or a sale. A conveyance deed essentially has the following characteristics:

  • Conveyance is an act of transferring ownership of property from one person to the other.

  • Deed is the legal document that is a binding contract between two parties and in India it is governed by the Registrations Act 1908.

  • Conveyance Deed is the most important document required to buy a property.

  • Without conveyance deed, property purchase is invalid.

 

What is a sale deed?

 

Before going further, we must also understand this. It is a legal agreement between the buyer and seller of the property where seller agrees to transfer his or her ownership to the buyer through sale on meeting certain mutually agreed terms and conditions. The important characteristics of a sale deed are:

  • A sale deed is one type of a conveyance deed

  • A sale deed and an agreement to sell are two different legal documents.

  • An agreement to sell does not transfer ownership or title of property from seller to buyer.

  • Sale deed includes general terms and conditions of property sale like details about the property being transacted, current owners (seller), new owner (buyers) of property, detail of loans (if any), utility payments like water and electricity, statutory payment like property tax, details of transfer of property title, rights and ownership, agreed amount of transaction and payment mode (full or part) and indemnity clauses.

 

What is the difference between a conveyance deed and a sale deed?

 

The two terms, conveyance deed and sale deed, are used very frequently in real estate transactions and not many of us know the difference between the two. To put it simply, these terms many-a-times are used interchangeably. However, there is only a small difference between these two documents – a sale deed is a type of conveyance deed whereas the conveyance deed is not considered as a sale deed.

 

Type of Conveyance Deeds

 

While there are so many jargons that you hear related to property documents, it is important to know various types of conveyance deeds that can be executed. There are three:

  • Freehold Conveyance – This means the owner of the property has free right on the property including both internal and external structure. This is issued to the owner of the property by the designated state authority (for example, Delhi Development Authority in case of properties in Delhi) marking the property as ‘Freehold’.

  • Leasehold Conveyance Deed – This means the owner of the property only has rights within the four walls of the property and not the external structure. Generally, the common area and the building is owned by the landlord.

  • Mortgaged Conveyance Deed – This means that the property is mortgaged with a bank or financial institution. However, the owner can enter and enjoy the privileges related to the property.

 

Contents of a conveyance deed

 

It is also important to know the contents that go in a conveyance deed before two parties sign it. A conveyance deed document should have details about area of the property (demarcation), details of annexed property, full chain of titles leading up to the current owner (seller), details of property handover to buyer, possession letter(s) and all terms and conditions of the property transaction. Any person must also take care of following while executing a conveyance deed:

  • The owner of the property (seller) must certify that the property is free of any legal restrictions or disputes.

  • The seller should also produce the authorised payment receipts of utility payments like water, electricity and gas to the buyer.

  • The seller should also clear the property tax dues prior to execution of the deed and share the authorised payment receipts with the buyer.

  • The buyer must pay TDS on property sale amount to the respective state government and submit the receipt to the seller.

  • In case there is some loan taken against the property, it should also have details of the loan. The seller should clear the outstanding amount to the lender before executing the deed.

  • The seller should convey the exact date by which the final possession of property will be given to the buyer.

  • The conveyance deed should be executed in presence of two witnesses and they must sign the conveyance deed to mark their presence.

  • The conveyance deed should be submitted to the local registrar’s office along with all original documents for registration within four months of execution. This should be followed by payment of stamp duty and registration fee to the respective state government.

 

It is important to clearly draft legal document(s). It is even more important to get them executed carefully. Afterall, when it comes to matters as sensitive as property, you cannot afford any lapses. Talking to a Legal Expert is a right thing to do.

 

LegalKart takes pride in simplifying the interaction between you and an advocate, whether it is your first interaction or a second opinion. Talk to a LegalKart Expert today and get unbiased and honest answers to your problem. Right advice, ultimately can make a difference.

Who gets the child’s custody anyway?
Child Custody

Who gets the child’s custody anyway?

It is nerve-wrecking for me to even think about the agony couples suffer while their marriage falls apart. But it pains us so much more to imagine the suffering their child experiences in the process. Yes, you read it right, we are talking about the painful process of getting divorced from your spouse and the struggle thereafter of getting the custody of your child(ren). The whole journey of separation is ugly but settling the matter of child custody is even uglier. While amicable resolution is a possibility, in reality it is farfetched considering the relations between two adults have already turned bitter due to irreconcilable differences and sometimes inflated egos.

This makes us ponder over the first thought that would possibly come in the minds of divorced parents – who gets the child’s custody after separation? There could be reasons for which each parent would want to win the custody of the child after divorce. Division of parental property, financial support for child’s education, good upbringing, safety and maintenance, visit rights, alimony, comfort with the child, right to take decisions with regard to child’s life, etc. are some that we could imagine. They would hire the best child custody lawyer to win the custody and block it for the other parent. However, as per the Indian child custody law, both parents have equal rights over the child even after their legal separation. The custody of the child who is less than 18 years in age only implies, with which parent the child will physically stay. One parent winning the custody does not mean that the other parent seizes to be the parent of the child and loses all rights over the child. The child custody law clearly states that irrespective of their marriage being annulled, they continue to be the natural guardians of the child. In other words, the custodial parent becomes the primary caretaker and the non-custodial parent retains the right to meet the child.

In most of the cases in India, the custody of the child is granted, by the family court, to one parent and the access of child is granted to both of them. Data clearly shows that out of around 90 cases in a particular year, the custody of the child has been granted to fathers in only 2 cases. What does this signify? Do mothers have an upper hand in the child custody cases in India? No, despite data favouring the mothers, it is not the case. Many-a-times fathers also believe that they can claim the custody once the child attains a particular age. However, this is nothing more than a myth, a disbelief that many continue to live with.

It has been evident in several landmark judgements that the courts have given high importance to the best interest and the ‘right of the child’ compared to the ‘right of a parent’ than anything else while assigning the custody after divorce to a particular parent. However, there may be exceptions or special circumstances that courts consider on case-to-case basis. For example, a) in case a child is less than 5 years old, the custody is usually given to the mother, b) generally father gets the custody of older boys and mother is given the custody of older girls and c) courts also consider the choice of the child who is above the age of 9 years.

 

It brings us to a point where it becomes imperative to throw light on the types of child custody allowed by Indian law. It can be one of the following kinds:

  • Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
  • Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
  • Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
  • Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.

We must also briefly know legal provisions that are applicable. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a vast nation with diverse religions and there are corresponding laws to deal with separation and child custody. The legal provisions that exist in the Indian Constitution based on the religion we belong to are:

  • Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
  • Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
  • Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
  • Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

 

It is already a nightmare for parents who are beleaguered with separation. Adding to woes, is the complications of getting the custody of their biological child(ren). It is a battle that none would want to lose. Imagine yourself in this situation where you are looking for information on how decisions are taken and judgements granted with respect to child custody after divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress.