Probate Compulsory for a Will to bequeath property in Mumbai

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the  following Q&A which was published by the Mint Newspaper on 18th August, 2021 and the online edition of the same can be found here.

I reside in Mumbai with my family in a flat transferred to me as per the Will of my father after his death. Now, I wish to sell this flat. I have two siblings, one in Mumbai and another in Chennai. For selling the flat, is it necessary to get their approval? Do they have to sign the sale deed, as the Will is not probated? My brother in Chennai is unable to move out of his house due to ill health. Is it necessary to get a power of attorney (PoA) from him to sell the flat? If yes, how can it be done? Is it necessary that I must also be present to sign in the PoA? Also, considering the health of my brother, is there a provision to call the registrar home and certify the PoA deed? Please advise.

—Mallika G.

Probate is compulsory for a Will through which properties situated in Mumbai are bequeathed. As your father’s Will transfers the legal title in the said flat to you only, and there seems to be no dispute between your family and yourself over this, it would be prudent to secure your title (and not just possession) over the flat by obtaining a probate. This approach needs further analysis based on other facts of your case. Depending on the comfort of the buyer to purchase the flat (without a probate), the buyer may insist upon executing appropriate documentation to secure his title to the flat. A buyer in such a case could insist on a registered release deed from the other siblings, or require them to sign the sale deed as confirming parties. The sale price may also drop if a “clean”, risk-free title cannot be secured. If your siblings cannot personally execute the sale deed, they can authorize you to execute and register the sale deed on their behalf, through a registered PoA. Such a PoA would attract a nominal stamp duty of 100 (in Chennai) and 500 (in Mumbai) since power is being executed in favour of a sibling. You will not be required to be physically present for execution or registration of the PoA. In Mumbai, in exceptional circumstances, the registrar conducts home visits for registration of documents. You will need to ascertain if such facilities are available in Chennai.