e-StampNotary
What this affidavit is, and what it is not
A legal heir affidavit is a statement on oath, usually by one heir with the others joining or consenting, setting out the date of death of the deceased, the family as it stood on that date, and the names, ages and relationship of every person entitled to succeed. It is the document that starts things moving. It is not a determination of title, and no notarial seal can make it one.
The notary's role is defined by statute. Section 8(1)(e) of the Notaries Act, 1952 allows a notary to administer an oath to, or take an affidavit from, any person, and section 8(2) makes the act complete only under the notary's signature and official seal. What is certified is that you appeared, were identified and swore. The truth of the family particulars is your responsibility, and if an heir has been left out, the affidavit is evidence of that omission, not cover for it.
For transferring immovable property, or for a bank or institutional claim above the amount that body is prepared to settle on an indemnity, a legal heir or varsai certificate is often not enough. A succession certificate from the District Court may still be required. Under sections 370 to 390 of the Indian Succession Act, 1925 a succession certificate covers debts and securities - it does not cover immovable property. Ask the bank or the office, in writing, what it will accept before you build the file.
How the varsai route actually works in Gujarat
Treat what follows as administrative practice of the Revenue Department, not as statute. It varies from taluka to taluka, which is exactly why we ask which office you are dealing with before drafting.
- The family-tree particulars - the pedhinama - are prepared and verified by the Talati-cum-Mantri, who records the varsai entry in the village record.
- The certificate itself is issued by the Mamlatdar in rural areas, or by the zonal officer in urban areas.
- The family-tree enquiry follows the place where the deceased ordinarily resided. A mutation in the land record, by contrast, is made where the property is situated. Those two can be different places, and people lose weeks assuming they are the same.
- Rural mutation goes through the e-Dhara centre; urban property records sit with the City Survey office; the 7/12 and 8-A extracts can be pulled from AnyROR.
Who must be named
Everyone. The omission we see most often is the child of a predeceased son or daughter, who succeeds in the parent's place. Others are a second spouse, a child from an earlier marriage, an adopted child, or an heir who is settled abroad and is quietly left out because getting a signature is inconvenient. Succession is also governed by the personal law that applies to the deceased, and the shares differ. Say who the deceased was, and let the drafting follow from that rather than from a template.
A nomination on a bank account, a policy, a share folio or a society flat entitles the nominee to receive the money or hold the interest. It does not make the nominee the owner. The nominee holds for the legal heirs, and nomination does not override succession law or a will. Families have torn themselves apart over this misunderstanding.
Where a will changes everything
If the deceased left a will, succession follows the will and not the heirship table. A will under section 63 of the Indian Succession Act, 1925 must be signed by the testator and attested by two or more witnesses, each of whom has seen the testator sign and has signed in the testator's presence; the two need not be present at the same time, and no particular form of attestation is required. There is no stamp duty on a will. Do not swear a heirship affidavit that is silent about a will you know exists.
What gets these rejected
- An heir omitted, or a predeceased child's branch not shown.
- The deceased's name spelt differently across the death certificate, the ration card and the property record, with nothing to reconcile them.
- No death certificate, or a certificate whose date of death contradicts the affidavit.
- Only one heir deposing where the office wanted every major heir to sign or to give a separate no-objection.
- A minor heir with no guardian shown, or a guardian purporting to relinquish a minor's share - which is a different and much more serious problem.
- The affidavit used to claim a transfer of immovable property when the office had already said it wanted a court grant.
Stamp duty as currently prescribed under the Gujarat Stamp Act, 1958; we confirm the current figure at the counter. Taking the affidavit on oath is capped at ₹35 under Rule 10(1) of the Notaries Rules, 1956, receipted and entered in the register in Form XV.
Related pages: death claim affidavit, widow affidavit, and notarised versus registered if you are being told a notarised paper will move a property record.
What to bring
- Death certificate of the deceased, original and a photocopy
- Identity documents of every surviving heir, and the address of each
- Ration card, school leaving certificate or any old record showing the family together
- Property papers or 7/12 and 8-A extracts, bank passbook or policy - whatever the claim concerns
- The will, if one exists, along with the attesting witnesses' particulars
- Death certificates of any predeceased heir, and the names of that person's children
- The letter from the bank, office or society stating what it wants