Gaurav Kapoor (Associate) 26 May 2013

Gift deed property

Gift deed

History

My Father has taken some money from a person in March’10 and gave him cheque for Rs 4.5 Lac and 2.5 Lac. Since the cheques are dishonoured hence person filed case under NI 138 Act in Oct’10 and this case is pending since my father never appeared before court.

The house in which we are living was purchased by my grand father and by virtue of Gift deed the same was transferred to my fathers name. Now my father again by virtue of gift deed transferred the same to my name and the same is registered in my name on 5^th Mar’10.

Query

Since the property was transferred to my name by virtue of gift deed to my name in March’10 and NI 138 case was filed in Oct’10, can this property be attached for recovery of amount?

We declared in Nov’10 that my father is not living with us since then in news paper.

Reply Follow

2 Replies

Hemang (Advocate) 26 May 2013

A drawer, who tenders the cheques to the lender for discharging the debt is expected to pay the debt. The cheques were bounced back, and therefore, the holder in due course has filed the complaint under Section 138 of the NI Act. Obviously, your father, who is responsible to discharge the debt is prosecuted. The Court will pronounce the judgment fixing his liability, or else to be sentenced to jail.

As far as the property is concerned, there may not be any question of attachment, because the criminal proceedings are resorted to. Had it been a civil suit, on establishment of chain of transactions to defeat the lawful recovery, the Civil Court might have taken into consideration the act of your father. But in any case, since the property is duly transferred, there may be a remote case for attachment.

Advocate Ravinder (Advocate/Attorney) 27 May 2013

Hemang sir

You have said above that:

"Had it been a civil suit, on establishment of chain of transactions to defeat the lawful recovery, the Civil Court might have taken into consideration the act of your father".

Can you please give me details under which provision of civil law it is maintenable.