Property gift deed & female legal heir

Reinsurance Expert

We are two married sisters. We are living with our husbands.

Our father purchased a flat in a Coop Housiing Society in Mumbai in 1970 from his own income and funds. Our mother was a housewife and had no source of income source on her own. We have various valid documents to prove these facts in our possession.

The flat was purchased in the name of our mother for taxation purpose. Our father was a joint member. Our younger brother is living in the flat with our mother and his family. Our father expired in 1985 intestate leaving behind him no Will. In these circumstances, we assume we are also legal heirs of our father having 1/4th share in the property.

As we were informed that the brother is trying to dispose off the flat to some third person without informing us, we immediately wrote letters to the Managing Committee of the Society requesting not to transfer the flat in the name of any third person without our consent as we have legal claim in the said flat.

Soon after receiving the copies of our letter, our mother registered a Gift Deed giving 100% share of the property to her only son. We have been informed that she is entitled to dispose off the flat at her own will because she is an absolute owner of the property after our father's death,

What right do we have as legal heirs of our father's property if our mother has gifted 100% share if property to our brother? How can we establish our legal rights now? How can we proceed, please advise.

Best regards
Mala

 
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Practicing Advocate/Legal Consultant/Legal Process Outsourcing 08427414792

Dear Querist,

 

The property is BENAMI in your mother's name as the consideration for the same came from your father. As of today, your mother is the true owner of the property since the same is in her name. She can, therefore, deal with this property as her self acquired property.

In order to claim your rights in it, you can file a suit for partition by claiming that the property is benami in your mother's hands and she was to hold it in trust for the benefit of all the children. The onerous burden to prove it as benami property lies on you. If you can lead documentary evidence to prove that the source of money to purchase the property came from your father, your mother will be held to be a benamidar and all the legal heirs would succeed equally to this property.

 

Regards,

Ashish Davessar

Advocate

 
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practising Advocate

The property is very clearly under the possession and ownership of your mother.  In the revenue records the property stands in the name of your mother.  Being the full/sole owner she has every right to gift it to his son. Being straight forward you have no title in the property. However you can create problems for your brother at the cost of your relationships , which is not recommended.

 
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Reinsurance Expert

Dear Mr Ajit Singh Cheema

Thanks for your comments. With the Gift Deed the relationships have already been strained. We can't expect them to recover either even if we don't claim our legal share considering the fact that the property is not purchased from mother's own income.


Dear Mr. Ashish Davessar

Thank you so much for your advise. We have documents showing that the property was purchased from our father's income and funds. We are thinking of filing a partition suit as early as possible.

 
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Posted by: nitish788  Categories: Uncategorized 
 

 

A Benami property is a property wherein the person who actually pays the consideration of the property (purchaser), purchases the property in the name of other person (benamidar), however the purchaser did not intends to make that other person beneficiary of the propertyThe sole purpose of Benami transaction is to facilitate the purchaser to hide him from the transaction for a various number of reasons like protecting himself from creditors, legal heirs, evading taxes etc.

Legality

Benami transaction may seem improper but they are not purely illegal unless it is a sham transaction wherein the transfer of the property actually does not takes place but takes place only on the papers. However with the enactment of Benami prohibition act, 1988, section 3(3) of the said act makes the person entering into the Benami transaction as a punishable offence, though according to section 3(2) of the said act there are exceptions which makes benami transaction as legal, mainly

  • If the property is purchased in the name of wife or unmarried daughter.
  • Any coparcener in HUF.
  • In the name of trustee, holding a fiduciary capacity.

However the transfer of title in the property may not be said to be illegal in spite prohibition in Benami prohibition act, 1988

Legal Advice-Click here

By Adv. Nitish Banka

B.E LLB(HONS)

9891549997

Practicing Advocate District and High courts in Delhi/NCR

 
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