cancellation of gift deed & sell of the property
Joydip
(Querist) 30 August 2016
This query is : Resolved
My mother owned the property from last 40years, since it was bought. 8 years back she gifted the property to two daughters. But in gift deed by mistake she put clause.... That ; the property can't be sold further or gifted or transferred. Our financial situation now demands sell of the said property. We all agreed & want the sell to happen.... Property now registered in name of daughters. (1) How the sell can take place. (2) can that conditional deed can be cancelled ... ( under section 10 / or senior citizen act or .. ) (3) cancellation of deed : Can it be done without going case in court ??? Will it be valid ??............ Plsss guide us . Its dammmn urgent. Plss guide
Ms.Usha Kapoor
(Expert) 30 August 2016
Dear Client,
AS PER SECTION 10 OF TP ACT CONDITION RESTRAINING ABSOLUTE ALIENATION of THE property IS VOID AND THE DONEE TAKES THE PROPERTY WITHOUT SUCH ONEROUS CONDITION. Daughters CAN SELL THE PROPERTY IGNORING THE ABSOLUTE RESTRAINT ON ALIENATION OR SALE OF their GIFTED IMMOVABLE PROPERTY FOR SUCH A CONDITION HAS NO VALIDITY IN TH EYE OF LAW.
Kumar Doab
(Expert) 30 August 2016
1st of all check if the said deed was a WILL or Gift deed?
If it was a valid WILL and duly acted upon without any cloud then it has prevailed. Moreover the wish of testator in WILL is supreme.It should prevail.
If it was Gift deed then it seems to be defective. If rescinded, the property may vest back to donor. If donor has deceased then to legal heirs/successors of donor.
Rest your own able counsel that has examined all docs, events,inputs on record, can render considered opinion and guide you further.
Guest
(Expert) 30 August 2016
Ms. Usha Kapoor has rightly guided. The clause which restrains the donee from transfering the property is void to that extent as per the TP Act.
Regards,
Rit Arora
Advocate
7838737001
Rajendra K Goyal
(Expert) 30 August 2016
(1) How the sell can take place.
Ans: Show all documents to local lawyer and discuss.
(2) can that conditional deed can be cancelled ... ( under section 10 / or senior citizen act or .. )
Ans; Gift deed can be cancelled with the consent of all parties / on technical grounds.
(3) cancellation of deed : Can it be done without going case in court ??? Will it be valid ??.
ans: Gift deed can be cancelled with the consent of all parties without going to court.
Kumar Doab
(Expert) 30 August 2016
Author may clarify; if the said deed was a WILL or Gift deed?
If it is gift deed then Expert Mr. Goyal has duly elaborated.
If both donor and donee are alive it might be possible to cancel the gift.
Rest your own able counsel that has examined all docs, events,inputs on record, can render considered opinion and guide you further.
Guest
(Expert) 30 August 2016
I would like to clarify little bit. The author has nowhere mentioned that it is a will. He has specifically stated that it is a gift. That is why transfer has taken place in the name of daughters. Now the problem he is facing is that there is a clause in the deed restraining transfer. On this issue the TP act is very clear. Section 10 of the Transfer of Property Act clearly states that " Condition restraining alienation.—Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein." It states specifically that condition or limitation is void. Further it is made clear to the querist that a gift cannot be revoked later on once it has been accepted. It is irrevocable except in the case of a gift contingent upon happening of a event or non happening of an event. https://indiankanoon.org/doc/548162/ the following case law is important in the context to show that gift cannot be revoked otherwise on the ground that it has not been accepted. Here in the present query the property has already been mutated in the name of daughters. It cannot be revoked by now. Following case law is also important in this respect as it will clear the doubt with regard to the point of such limitation in the gift deed. High Court of Allahabad has held that such conditions are repugnant and the transfer is absolute. The case is referred by Karnataka High Court, Patna High Court and Punjab & Haryana High Court. https://indiankanoon.org/doc/1380719/
Experts kindly see and revert
P. Venu
(Expert) 30 August 2016
It may be that there could be other conditions as well. No definite suggestion is possible unless the deed is read as whole, the provisions of Section 10 TP Act notwithstanding.
Raj Kumar Makkad
(Expert) 30 August 2016
You have rightly been advised by experts on all aspects of the issue hence no more to add.
Kumar Doab
(Expert) 31 August 2016
The author may show the said deed and all record to a very able counsel for a considered opinion.
Rajendra K Goyal
(Expert) 28 September 2016
Author can proceed as per above advice from expert Kumar Doab.
