Division of assets, also commonly known as division of property, is one of
the most debatable topics in India. Earlier, through the implementation of Hindu
Succession Act, 1956 a girl in a particular family was allowed to claim her part
of the property equally like her brothers unless there is a will executed by her
father for the division of property. However, due to certain ambiguity and due
to non-flexibility of this law, a recent amendment was made to this legislation.
The recent amendment in the existing law has allowed the women who are born
before the year 2005 to claim the property. However, there are still a lot of
cases, where the women of the family do not claim her share in father's
property. In such circumstances, her share needs to be entitled to someone in
the family, and this process is known as the division of assets. Normally, a
woman transfers her rights to share in the property to her brother as he mostly
already has a share in the property.
Ways through which transfer of property can happen This article focuses on how a
daughter or sister can transfer her part of share in the ancestral property to
someone else in the family.
There are mainly two ways to do it:
- By signing a Non-objection certificate
- Through the process of relinquishment deed By signing of the
non-objection certificate (when there is no will executed) As the name
suggests, a non-objection certificate is signed when an individual legally
wants to explain that he/she has no objection in doing a particular thing.
Therefore, such scenario arises when a will is not executed as there is no
proof how the property is to be divided between members of the family. When a
daughter signs a non-objection certificate (NOC), she states that she has no
objection in transferring her share of the property to someone else in the
family. This certificate is one of the most important certificates that is
required to transfer the property in the case where no will is executed by the
deceased of the family.
An individual who receives a legacy under the will, or who obtains a property
after the death of a person automatically without even the execution of a will
is called the legatee or legal heir. However, if the legal heir chooses to give
up rights in the share of the property, he or she will have to present a written
letter in favor of other heirs (NOC), stating they are giving up their claim in
the said property and in such a case, the children of this said person will also
not be able to stake claim over the property in future.
Through the process of relinquishment deed (when there is no will executed) What
is a relinquishment deed? Relinquishment deed is a legal instrument where a
legal legatee gives up or releases his legal rights in a hereditary parental
property for another legal heir.
The expression relinquishment refers to the disposing off and giving up of the
rights, title, and interest, by one co-owner of property for the other
co-owners. The subsequent scenario of relinquishment of one co-owner�s share in
possessions is the extension 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
inheritor can reassign or discharge his legal right of the innate property.
Consequences:The result of such transfer of rights is the discharge of the share of one
co-owner and the augmentation of the shares of the other co-owners.
Irrevocable:A release or relinquishment deed is binding and irrevocable in nature even if it
made without any monetary consideration. For a valid relinquishment deed, more
than one individual must be the owner of the property.
Relinquishment cannot be done for a 3rd person:Relinquishment of assets can't be made in favour of an individual other than a
co-owner. If a relinquishment is made in favour of a person who is not a
co-owner, the contract will be treated as a gift.
Must be in writing:The relinquishment of property when the property is immovable - is necessary to
be executed through a written document called relinquishment deed, that must be
signed by all the parties to the deed and that has to be attested by at least
Must be registered:Relinquishment deed falls within the ambit of Section 17 of the Registration
Act, 1908 and hence, a discharge of rights in the immovable property must be
registered. The registration has to be placed in the office of the sub-registrar
within whose jurisdiction the property is located.
Consideration: A relinquishment deed can take place with or without any consideration.
Simple process: A relinquishment deed can be completed and registered in only some days, and
this procedure is not costly.
Who can Relinquish a Property?
Any person who has a share in the property and
who is capable of making relinquishment of property. In a circumstance that
there is more than one proprietor in a property, either of the co-owners can do
the relinquishment. For a valid relinquishment, the basics of a valid agreement
are to be followed other than the reimbursement other than the consideration.
Registration of Relinquishment Deed A relinquishment deed is a document by which
an individual formally gives up his assets to another person, and the said deed
must be methodically executed and registered in accordance Section 17 of the
Registration Act, 1908. For attainment a relinquishment deed registered, it is
recommended to seek advice from a lawyer who can prepare the deed for you, and
in case you know the legal methodology and terminology, you can do that on
The steps mentioned below are to be followed to get a relinquishment
Preparation of Relinquishment Deed: A Relinquishment Deed is to be made on a stamp paper of Rs.100. Make sure
that every aspect of the relinquished property is clearly cited in the deed.
Submission the deed before Sub-Registrar of Assurances: Once the deed is prepared on a stamp paper, it is presented before
sub-registrar of declaration within whose jurisdiction the property is
located for registration along with a registration fee which differs from
state to state, but it is somewhere between Rs. 100 - Rs. 250 in all states
Witnesses and other requirements: Signatures of two witnesses will be
necessary to get a deed registered. Other documents such as passport size
photos, identity proof (driving license, Aadhar card, etc.) will be
Lalitha James and others v. Ajit Kumar and others
Facts of the
P.S. Chouhan held vast properties. He died unmarried and issueless as well
as was determined to give away the said properties to his two sisters named Mrs
Dayabai and Gracebai by executing a gift deed in 1935. There had been no
partition between them. Mrs Dayabai was survived by appellants 2,3and 4.
Gracebai survived by appellant 1, named Mrs Lalita Jaems, and respondent no. 3,
namely Mrs Park. The 5.74 acres of land was divided between the survivors of
Gracebai. Respondent no. 3 sold her share to Respondent no. 2 for Rs. 14,000/-.
Later on, the transferee commenced digging the land to raise a structure. It was
objected to by appellant no.1 as well as a suit was filed by Respondent 2. The
Trial Court dismissed the suit since the vendor was not in possession as well as
the sale did not confer any right or title on them, whereas they can get their
money refunded. The Court held that the respondent no 3 was in exclusive
possession of the land, whereas rightfully sold it to the respondent no. 2.
The Madhya Pradesh High Court highlighted that it is the
strength of the plaintiff's title and not the absence of the defendant's title
that matters. A purchaser of the undivided property from a co-owner's share is
not entitled to possession of any particular part of the joint property. His
right would be for joint-ownership and not for exclusive ownership of any part
of the joint property. A transferee is not in a better position than the
co-owner himself. Section 44 of the Transfer of Property Act gives sanction to
this principle. Therefore, the High Court held that the respondents were
entitled to enforce the partition of the joint estate. The Court did not accept
the sale of the exclusive property and allowed the appeal.
bench of the High Court of Delhi, vide judgment dated 20 May 2020 in the matters
of Tripta Kaushik v Sub Registrar VI-A, Delhi & Anr and Ramesh Sharma v
Government of N.C.T. of Delhi & Ors
., has dealt in depth with the distinction
between a relinquishment deed and a gift deed. The Court laid down a test to
determine whether a particular deed is a gift deed or a release deed and held
that if the relinquishment by the co-owner is in favour of only one of the
co-owners and not all the co-owners, that particular document will be a gift
deed and not a relinquishment deed.
The Delhi HC considered various judgments of
the Supreme Court and several High Courts and laid down the following test to
determine whether a deed can be considered a release/relinquishment deed:
- The character of the transaction intended by the co-owner is the
deciding factor in determining whether the document is a release or gift
deed and not the other factors or the language of the document;
- Determining the nature of the document is not a pure question of law;
Mere usage of the words like consideration and transfer will not affect
the true character of the transaction; this is applicable in case the
co-owner is renouncing its share in favour of another co-owner;
- Co-owners can be through both inheritance and purchase;
- If the relinquishment is in the favour of only one of the co-owners and
not against all, the document would then be considered a gift deed and not a
Through this judgment, the Delhi High Court
has laid down a consolidated test to make it convenient for the comman man to
gauge the difference between a release deed and a gift deed. Conclusion The
transfer of ancestral property between legal heirs is a matter of concern always
as it becomes a tough job, especially when there is no will executed by the
owner of the ancestral property.
In many circumstances, even when a will is
executed, there are high chances that the heirs may not be satisfied with it and
eventually challenge the will in the desired courts. Through the new amendment
in the law, where a daughter can equally claim for her share in the property it
has become important that the will is drafted in such a manner that it satisfies
all the necessary prevailing laws in the country.
However, in most of the
circumstances, a daughter refuses for her share in the property and often ends
up in giving up her share of the property to her brother or mother. Such a
process needs to be complied with the process explained above, for it to it be a
legal and valid transfer in the eyes of the law.
Award Winning Article Is Written By: Kishan Dutt Kalaskar Advocate
Judge) - A Retired Judge and practicing advocate having an
experience of 35+ years in handling different legal matters. He has prepared and
got published Head Notes for more than 10,000 Judgments of the Supreme Court and
High Courts in different Law Journals. From his experience he wants to share
this beneficial information for the individuals having any issues with respect
to their related matters.
No.74, 1st Floor, 6th Cross, Malleswaram, Bengaluru-560003- Email: [email protected]
Authentication No: NV31902001389-15-1120