Question about property gift
Parvez Ashrafi
(Querist) 14 July 2014
This query is : Resolved
I bought a house in Hyderabad (old city) with the value of 24 lakhs in year 2013 with sale deed by paying 1, 80,000 as stamp duty.
A childless couple who was the owner of that house both died one in 2011 (female- A) and another in 2012 (Male -B) after the death of the couple A&B the direct sister of B started living in the house and in Jan 2013 she sold the property to me as she was legal hair according to Islamic Shariya (mohammadan law) and in 2013 Oct she also died.
Now one nephew of B saying that the house was already gift to him by A&B in year 2010 and filed a case asking for position & cancellation of sale deed.
I am living in the same house from 2013.
All the electricity bills, water bills, and property tax is on my name and I am paying them.
Please tell me what options I have to defend?
Can my sale deed get cancelled based on the gift document which was not even registered in the register office?
Thanks,
Parvez Ashrafi
(Querist) 14 July 2014
Can as person claim a gifted property which is not even registered after 3+ years ?
Raj Kumar Makkad
(Expert) 14 July 2014
A Mohammedan cannot gift more than 1/3 share out of his property. There is no requirement of the registration of the gift as per Muhammadan Law but such person shall have clearly to establish such gift.
Raj Kumar Makkad
(Expert) 14 July 2014
You are required to contest the case vigorously and effectively.
Parvez Ashrafi
(Querist) 14 July 2014
from 2010 till 2014 that person did not inform to anybody about the gift and after 3+ years is over he his declaring the gift after the lady who sold me the house is dead
was he not supposed to declare the gift when he got the gift and take the position of house ?
Raj Kumar Makkad
(Expert) 14 July 2014
Though the issue of limitation shall also help you but such technical points are not conclusive for the just and proper decision of such cases.
Parvez Ashrafi
(Querist) 14 July 2014
I also did the mutation of property in local Municipal office a year back will this help me to defend ?
Devajyoti Barman
(Expert) 15 July 2014
yes, mutation will help you to establish possession.
Sankaranarayanan
(Expert) 15 July 2014
Nothing more to be added. Already makkad ji explained maximum
Rajendra K Goyal
(Expert) 15 July 2014
You have to defend the case effectively by raising all material facts before the court. Agree with the experts.
ajay sethi
(Expert) 15 July 2014
you have good case on merits . you have purchase property by regd sale deed and all bills are in your name . nephew is trying to extort money from you . if house had been gifted to nephew he should have been in possession of the house
P. Venu
(Expert) 15 July 2014
Gift of property, under Mohammedan Law need not be registered. However, it is essential that the donee accepts the gift and he is put in possession. The fact that the alleged claimant has not been in possession casts doubt.
P. Venu
(Expert) 16 July 2014
Further, under Mohammedan Law there is no restriction that a person cannot gift more than 1/3 of the property (such restriction is only respect property bequeathed by will).
Moreover, barring exceptions, gift given by a Mohammedan is revocable.
Hence, in the present case, not only has the claimant needs to prove the factum of gift, he also has to establish that the gift was not subsequently revoked.
Parvez Ashrafi
(Querist) 16 July 2014
Thanks for update Mr.Venu
My advocate is asking me to file a counter and asking me to submit all my original documents in the court.
Is it required to for file a counter ?
Do I need to pay court fee for counter ? is yes than how should I calculate the fee ?
Is it really required for me to submit all my original documents of sale deed in court ? if yes, than what acknowledgement should I be taking from court and when will I get my documents back ?
Raj Kumar Makkad
(Expert) 16 July 2014
You are not required to file the original documents in the court at this stage rather you re required to file court fee for the counter claim.
T. Kalaiselvan, Advocate
(Expert) 17 July 2014
Three essentials of a valid gift under Mohamedan Law, namely:
1) Declaration of gift by donor; 2)Acceptance of gift by the donee; 3)Delivery of possession of property by the donor to the donee, either actually or even constructively.
An essential condition of a valid Mohamedan gift is, therefore, that the donor must physically divest himself completely of the ownership of the property.
In your case, the claimant was never in possession of the property hence even if it is assumed that there was a Will, it stands invalid because of non-delivery of possession at that time.
It is essential that you have to file a counter statement. But it will not involve any court fee unless there is a counter claim. The original documents need not be filed now, it may produced before the court at the time of your side evidence while it is being marked as exhibits from your side.
Parvez Ashrafi
(Querist) 21 July 2014
How much do I need to pay court fee for counter filing on the value of 24, 00, 000 and can I pay the court directly by myself instead of giving to the advocate ?
P. Venu
(Expert) 21 July 2014
You need not pay any court fee.
