Legal heirs in settlement deed

26 May 2019
In 1962, a settlement deed was executed in favour of Mrs. A (now deceased) and her three sons X, Y & Z (Settlees). As per the settlement deed the "Settlees" are only entitled to enjoy the property and not have the right to alienate the said property. My client has approached bank for loan towards purchasing the aforesaid property for commercial purposes.

The Bank lawyer has informed that the ownership of the property vests with the "Settlees" along with their legal heirs and hence the legal heirs should also execute the sale deed along with the Setlees.

Now, establishing the legal heirship of XY&Z is becoming an issue as VAO informed that legal heir ship certificate is given only if the person is deceased and not when alive. My client is willing to provide a declaration / affidavit from the legal heirs of X, Y & Z stating that they are the legal heirs and the same will also be signed by XY&Z. The said affidavit will be notarised. However, Bank lawyer has informed that mere self declaration on legal heirship as mentioned above will not be sufficient as there could be possibility of some claim at a later stage from a legal heir who was not originally part of the above declaration.

Kindly advice on how to proceed ahead. Also if the sale is concluded through the above declaration, is it possible for any legal heir (who was not part of the declaration/ affidavit) to challenge the transfer on the ground that it is null and void abinitio.

Kindly advice.

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