Cancellation of gift deed
Querist :
Anonymous
(Querist) 08 December 2011
This query is : Resolved
A LAND WAS GOT REGISTERED BY WAY OF GIFT BY MY FATHER TO ME IN 2003 DECEMBER. ON THE SAME DAY MY HUSBAND GOT GIFT DEED (50%) SHARE IN THE LAND REGISTERED BY FORCE. A HALF CONSTRUCTURED PROPERTY WAS NOT MENTIONED IN THE GIFT DEED. FOR COMPLETION OF THE HOUSE AND TO REPAY THE LIABILITY TOWARDS TILL DATE CONSTRUCTION OF THE HOUSE, HE FORCED ME TO AVAIL HOUSING LOAN. SINCE THE LAND WAS REGISTERED IN JOINT NAME HE HAD TO JOIN THE LOAN. BUT REPAYMENT TOWARDS THE LOAN WAS NOT MADE BY MY HUSBAND EXCEPT FOR FEW PAYMENTS. CAN I CANCEL THE GIFT DEED NOW?
Devajyoti Barman
(Expert) 08 December 2011
Who was the principal borrower. If it is you then first go for cancellation of loan and then cancellation for gift.
vinay vaidhya
(Expert) 08 December 2011
cancellation of gift deed is not possible ask you husband to gift the property to you. as there is a lien on the property you have to clear the loan
Raj Kumar Makkad
(Expert) 08 December 2011
The advice of Vinay is neither legal nor practical and I wonder how prabhakar singh has agreed with him.
A property gifted in your favour in 2003 made you full owner of the gifted property soon on the same day of registration of gift and your taking its possession so there was no opportunity with your father to re-gift it in favour of your husband. The entire property belongs to you so get the papers corrected accordingly and bank can also be intimated.
Shonee Kapoor
(Expert) 09 December 2011
I apologise Ld. Mr. Makkad,
Seems that at the time of registration of gift deed, it is alleged that the husband took 50% gifted in his name.
There is only one gift deed 50-50 share of husband and wife.
In such case the advise is correct.
Querist may correct, if I am wrong.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Querist :
Anonymous
(Querist) 10 December 2011
sir
my father gifted the property to me and in turn my husband forced me to gift him fifty percent on the same day with a threat that he will divorce me if i don't gift him 50% share of property.
If i clear the housing loan by myself, whether the bank will give all papers (original) to me? because the loan in joint names and i feel both of our signature is required for release of documents.
if i have to file for cancellation of gift deed after closure of loan what would be the cost i have to incur?
Querist :
Anonymous
(Querist) 10 December 2011
sir
both the gift deeds were registered on the same day. 1 from my father to me 100% and second from me to my husband 50%.
prabhakar singh
(Expert) 10 December 2011
I am surprised why Mr.Makkad discourages unnecessarily others.He is allowed not to spare me and monitor me up to extent of his desire as I have now understood that he does it not deliberately but due to habit and a habit good or bad can not be changed so easily.
Then it is my personal request to him that do not not discourage others more particularly juniors as there is risk of loosing confidence with them.
I still feel Mr. vinay vaidhya right in his answer.The gift was made in favor of husband in 2003,now it is 2011,then if he has advised that cancellation is not possible now ask your husband to Gift you back.I re taxed my brain to find him wrong but failed to amend my view "rightly guided".
Reprimanding him such a way is not a healthy way.It is also our duty that line below us come more stronger than we feel our selves for which genuine buck up and soft suggestions are needed and not a severe reproof or rebuke, especially a formal one by a person in authority.I have found few freshers here even better than ourselves when it comes in knowing the wide spectrum of law,Mr.Shah is one among them,only they need the "fine tunes of expressions".
My revisit here is, however, only because I saw a new post in this thread from questioner,to address her,I am posting the answer separately which shall fetch me one more point automatically but clarity is the reason in my mind for posting the same separately since here all shall stand jumbled.
Guest
(Expert) 10 December 2011
It seems as if the contradictory replies of and misunderstanding between the experts about the problem have arisen due to unclear query of the author, which she cleared in her subsequent posts.
prabhakar singh
(Expert) 10 December 2011
Mohterma!
By your first post one thing is confirmed that the Gift was executed in 2003.By your
this post you clarify That your Father Gifted some property in your favor by a registered deed where after you on the same date in 2003 gifted 1/2 of the same property in your husband favor for which your consent was not free as your husband obtained it by force on the pretext that if you do not gift him 50% of the property received by gift from your father,he would divorce you.
Where after knowing the same you both have carried on long 8 years bearing the fact"forced consent"against which action,if any,was open as law suit of cancellation up to 03 years being 2006 as right from first day you knew that your consent was forced one and not free.Such things are voidable by law suits in courts within time prescribed by law but you did not act with in time.
Not only this much,you duo also jointly obtained housing loan against that property
creating equitable mortgage in favor of bank in repayment whereof since a default has occurred and the property has now come
exposed to a risk of auction and that is how now you are worried.
Simply by paying back the loan and interest
the property can not come back in your name deleting your husband's name.And also now there cannot be any suit to cancel the gift made by you in favor of your husband on the ground that since you have exclusively discharged the loan,the gift should stand cancelled.
your such rights are now completely barred by law.
But yet I see two routes opting any of two you can regain the property:
1]let the property be auctioned by Bank,participate in auction and buy the whole as auction purchaser which shall,in case you manage properly would be cheaper than loan amount.The Bank shall still have right to realize the residue of loan,if any left after auction.Then settle with Bank for residue and deposit that.Thereafter file a suit of realization against your husband for realization of 1/2 of the debt[if you want so]by a law suit where the old story may also be sung.
2]The second route is a little long road than the former.Here you need to negotiate with Bank,pay them off the settled amount and there after file a suit of realization of 1/2 share amount of loan paid by you on behalf of your husband and after decree if he does not satisfy the decree get his share sold in execution as auction purchaser.
But I recommend the first route.
Querist :
Anonymous
(Querist) 10 December 2011
sir
after the row in 2003 with regard to property, my husband who himself is a lawyer started worsening my condition by not paying the bank loan which is taken in a bank for which i am working and i started getting notices and humiliation etc. hence in 2005 i have filed a police complaint and they have filed criminal petition in the court under section 498a. The case was decided and he was awarded with a punishment of 1 year imprisonment and fine of 3000/-. later he appealed in district court and there too it was decided against him. later he appealed in high court and kept silent and because of the negligence of my advocates, he got the case in his favour. meanwhile, in 2005 i have filed divorce petition - dissolution of marriage under muslim personal law. since 2003 i have been asking my advocates whether i can go for cancsellation of the gift deed which was done by force and lead to dissolution of marriage. but due to reasons known to them, i am still trying. since i found this site is better place to have a opinion, i have posted my questions. sir i also want to know, whether my husband's acquital in criminal case can be ground for not giving divorce to me??? since he has appealed in the court this is my concern.
ASMA
MANAGER (NATIONALIZED BANK)
