હક્ક જતો કરવા માટે નો લેખ – આર્ટિકલ .

1. Most of the people neglect in creating a Will for years and by and large die without leaving a Will. If a person dies without leaving a Will, it is called as “intestate”. It also includes the property of a person which was inherited by his / her legal heir. In that case, the legal heirs could go for relinquishment deed, which allows a smooth transfer of property – if there are two or more legal heirs, and can request to separate the property in future.

A relinquishment deed is termed as a legal document where a legal heir relinquishes / release or gives up his / her legal rights to ‘inherited property’ in good faith in favour of other heir(s). When the person dies intestate, the relinquishment deed transfers ownership. The legal heir (by inheritance) will transfer their shares in favor of co-owner or an additional legal heir, of the same property. A relinquishment deed will be assigned either for consideration or with no consideration. Conversely, the parties involved must be co-owners of the property for the transfer to be released or relinquished.

2. By and large, the person during his life time, execute a “Will” through which he could declare the ownership of his share in the property in favour of the desired legal heir such as mother, son (s) and daughter (s). The “Will” should be clear and should be signed by the person who is making the will as testator and the will is required to be attested by two witnesses. Although a “Will” is not mandatorily required to be registered with the concerned sub-registrar’s office of properties, yet, if the same is registered, it will minimise the possibility of future disputes amongst the heirs. Additionally, one more things is required to taken care is that one has to ensure during one’s lifetime that the “Will” remains un-amended so far as the declaration of ownership of the share in the property in favour of the desired legal heir (s) is / are concerned.

A will generally dictates how a person plans to transfer his assets or properties after his death to his/her heirs. A Will comes into effect only upon the death of the testator. The governing law of Will is by the Indian Succession Act, 1925 (Succession Act). As per sub-section (h) of section 2 of the Succession Act, a “Will” is defined as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.

3. In cases where there is no will made and the person dies, then it is known as intestate i.e. without a Will. In such cases, intestate succession law controls succession i.e., the persons who become entitled to the deceased’s properties are the deceased’s, legal heirs. In our country, the succession law applicable to a deceased’s estate depends on their religion. Hindus, Muslims, Christians, Parsis, etc., have different succession laws. When succession takes place in this manner, it is known as intestate succession.

A person dies intestate when he has not bequeathed his properties according to a will, then intestate succession takes place meaning succession without a will which is governed by the Indian Succession Act, 1925.

As per the provisions under the Succession Act, a Will can only be revoked by the testator in the event of –

It may be noted that the testator intending to revoke the will and is the only person allowed to validly destroy his / her own Will. A Will can either be destroyed directly by the testator or by the testator giving directions to a third party in their presence)

4. In relation to an immovable property, an owner of property inherited by a will or even intestate (without a Will) – by way of being a legal heir could give up his / her right in the property which is known as relinquishment or even known as release. In simple words, relinquishment with reference to an immovable property means that an owner of a property relinquish or given up his or her rights in the property in favour of another person.

5. The following are the ways one could relinquish the rights in the property

The relinquishment of the rights in the property could be legally done by way of executing a relinquishment deed which is also known as release deed. Relinquishment deed or release deed is a legally valid document or an instrument according to which an individual releases or give up his or her rights of an heir in an ancestral property in favour or another legal heir or co-owner of the property.

When a person dies intestate i.e. without leaving a will – his property is divided among his legal heirs. In the case where an heir to the inherited property wants to give up or relinquish or release his / her rights in favour of another legal heir of the property such as son, mother-daughter, bother etc., then a relinquishment deed or release deed is required to be executed.

A relinquishment deed / release deed is irrevocable even if it is without any consideration. It can only be challenged in a court of law on the grounds of fraud or coercion.

One can give it up or relinquish the rights in the property by executing a gift deed also. In this case, the person who is relinquishing his /her rights is gifting away the property rights in favour of another. A gift deed cannot be revoked but it can be challenged in a court of law on the grounds of fraud or coercion. A gift deed cannot also be cancelled unless the donee has obtained the same through either by fraud, coercion, misrepresentation or undue influence from the donor.

Whether it is a gift deed or relinquishment deed / release deed, as the case may be, once execution is done, these documents would call for registration with the concerned sub-registrar of properties office and these documents would also attract the specified rate of stamp duty. In most of the states, stamp duty is exempted on a document through which a property is being transferred in favour of a blood relative.

Sub-section (1) b of section 7 of the Registration Act, 1908, provides that an instrument, using which a right is either created or transferred with respect to an immovable property, must be registered. Hence, a relinquishment deed must be registered, to give it legal validity

Under section 123 of the Transfer of Property Act, 1882, the gift of immovable property is valid when gifted through a registered gift deed signed by the donor and the donee and attested by two witnesses and as per section 17 of the Registration Act, 1908 a gift deed must be compulsorily registered in order to be valid and legally effective.

6. We could list down the follow main differences between the Will, gift and the relinquishment deed.

7. The stamp duty on the relinquishment deed is required to by pay by the executant i.e. the person who transfers his interest and right in certain property to the co-owner of the property.

8. The following are the procedure for getting the registration done for the relinquishment deed.

9. The following are the essential consideration that needs to form the contents of the relinquishment deed.

If in the event of a death without leaving a written Will by the deceased individual (or intestate) – the execution of relinquishment deed comforts in the transfer of property. By executing the relinquishment / release deed, when the property is jointly owned, the deed serve the purpose for the smooth transfer of property. A relinquishment deed permits a legal heir to transfer ownership of the inherited property to additional legal heirs as has been discussed in the earlier paragraph.

We can conclude in saying in order to ensure the smooth transfer of property in the absence of a written Will, is by way of execution of the relinquishment/release deed which must be registered failing which the document is not valid and obviously the unregistered reglinguihment deed being a non-valid deed is not eligible for contesting in the court of law.