Gifting a house on which a loan is pending
Dr G V Rao
(Querist) 08 April 2012
This query is : Resolved
A father left a will in favor of his son after revoking an earlier will in favor of his wife. The Will pertains to a house.The will held by the son is unregistered and that of the mother is a registered one. After revoking the will and executing a fresh will, the father raised a loan on the house and remitted the sale deed to the loan giver and executed a Promissory note for the amount and the son is the surety in case father defaults. This loan is raised from a family friend. Now the father expired in 2006 and son has been repaying the loan and neither the mother or the daughters bothered to pay or ask about the pending loan. Now this loan is in knowledge of all the family. The mother behind the back of the son executed a Registered Gift Deed in favor of her two daughters. The Gift Deed does not speak of the loan pending on the gifted property. The son is in the possession of the property and pays all the taxes and bills of electricity and water. Now the son is homeless with the burden of the pending loan.
What should the son do ? Please advice.
V R SHROFF
(Expert) 08 April 2012
When did son came to know of WILL?
6 YEARS IS TOO LONG A PERIOD.
PRO NOTE IS TIME BARRED, AND NOT PAYABLE.
ONCE THE WILL EXECUTED IN FAVOUR OF SON, MOTHER HAD NO RIGHT , as it was revoked.
Property must have not been mortgaged, or registered.
As possession with son, he cannot be dispossessed without following due process of Law.
If son proves, that payment made by him, and he accepted property thru WILL , along with burden of loan, he will continue to be in possession, and will have title.
Which will was probated??
adv. rajeev ( rajoo )
(Expert) 08 April 2012
Always latest will prevails. Son has to file a suit for declaration and he has to pray that the regd., gift deed is not at all binding on him.
Raj Kumar Makkad
(Expert) 08 April 2012
In the given case, you require mentality to fight and win your legal right may it take some time and may it spoil your personal relations. If other side has not thought about you, why should you?
You shall have to file a petition seeking probate of will without showing any knowledge about the alleged gift made by your mother. You shall have to make your sisters and mother as respondents and let them produce their registered will and subsequent gift deed. You challenge those documents in replication and lead your evidence and got set aside those false documents.
You have a very good case in hand but it shall require a time to settle. Meanwhile in the same suit/petition, you obtain stay order against your eviction or third party interest in the house property.
Adv.R.P.Chugh
(Expert) 08 April 2012
Dear Mr.Rao,
Let's get the basics right first :
i) The will in your favour revokes earlier one and is the one that stands (the fact that earlier will was registered whereas this will is unregistered is of no consequence)
ii) The Gift Deed executed by your mother is non est/void and you should ASAP obtain a declaration as to it's invalidity.
iii) File for the probate of the will that stands in your favour.
iv) The House is effectively mortgaged by deposit of title deeds (which is a valid mortgage and need not be on a document)
Though the promissory note is time barred. The Mortgage may be proved by leading oral evidence, and should pose no problem if you continue to pay the loan.
Feel free to talk !
ajay sethi
(Expert) 08 April 2012
make an application for probate of will . the last will made in your favour revokes all previous wills .
mother has no right to gift the property to daughters . you cnnaot be rendered homeless you are in posession of the property . contact a local lawyer immediaedly
Sailesh Kumar Shah
(Expert) 09 April 2012
Adequately guided by Ld. Experts. Now you can proceed as advised.
Dr G V Rao
(Querist) 09 April 2012
Dear experts, thanks a lot for your valuable advice and especially the time taken to so affectionately reply. Shall follow ur advice.
For Shroff sir, the will executed in favor of the son had come to his knowledge only in September 2011 and the whole family knows it since 2004. He got the house mutated in his favor with active knowledge of his sisters and mother. Property was a surety or guarantee for loan. No mortgage deed was executed or registered since the loan giver was an old family friend of over 40 years. Son has proofs of payments made by him. None of the wills were probated.
As other experts advise on the Will. The love of the son for the family and the false reciprocation made by his mother and sisters made him not to probate the Will since for him, the relationships was important and nothing more. However he did not expect that his own would back stab him. Thanks again and shall get the son to file a declaration suit and also take a ad-interim injunction.
prabhakar singh
(Expert) 14 April 2012
The son is advised to file a suit of his right over property in question on the basis of will and should also prove the loan and its' retirement and should assail the mother's right to gift.
