Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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BHASKAR (CONSULTANT)     05 February 2015

Advice on validity of gift deed by one of co owners .

Sir,

 We have inherited land in Gujrat, having mother & 7 childern as Co owners.  This is reflected in land Records like 7/12 Extract, Hakkapatrak Namuna No. 6 & property Card etc since yer 2000.

1) Mother  was 94 years old when she did Gift Deed  (& Registered it ) for her 1/8th share in the the undivided ancesrtal family land , in favor of one of the daughter, without the knowledge & consent of other co owneres.

2) When the 135 D Notices for Mutation Entry came , we strongly objected to it.

3) The dispute case was heard by the City Survey  Superintendent & he Rejected the Muration entry on the basis of :

(a)  The consent/ N.O.C. of all the Co owners was not obtained before  entering in to such a Gift Deed.

(b) The donor & the recipient decided among themselves only about : their share & dimension of th

  undivied land to be gifted & prepared the gift deed and even registered it.

      It’s authenticity  is questionable.

(c)  There was never a  written Agreement, MOU or Deed of Division amongst the Family members/

      Co owners of the said land having Right, Title & interest in it.

(d) Important fact that – so far  the Donor & the Recipient of the Gift Deed did  not get any confirmatory

     Orders from the Civil  Court regarding—

      exact rightful share in the land( in sq. mts. ) each person is eligible, deserves  to get & finally gets allotted.

        The recipient went in to Appeal to the Prant-Dy. Collector ( appealeate Authority) .

4) Mean while mother has expired.

5) The Appeal  is due for Hearing with in 2 days.

6) Pl. urgently advise and give us the details---as many as possible Court Judgemnet s about the Mandatory   requiremnet   of NOC from the Co owners, before making & Registreing the Gift Deed & also other valid points in support of Rejecting the Gift Deed & it's legal standing.

Thanking you.



Learning

 4 Replies

T. Kalaiselvan, Advocate (Advocate)     05 February 2015

Your mother need not obtain consent from co-sharers for executing the gift deed in favor of one of the children (daughter), however, as the proper partition  was not made, your mother can execute gift deed of her undivided share in the property and the gift deed is very much valid.  Moreover since your mother is dead now, the gift deed is deemed to be valid in respect of her undivided share in the property.

Jaya Pathak (Paralegal)     06 February 2015

Hello Kalaiselvan Sir.... can you please advice again based on the following citation which I have found.  

 

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

SB CIVIL FIRST APPEAL NO. 55/84.

https://indiankanoon.org/doc/195941146/

 

DIGVIJAY SINGH & ORS. – APPELLANTS.

VS

SANT RAM & ORS. – RESPONDENTS.

 

DATE OF JUDGMENT :                                    23RD JULY 2013.

32. It is needless to say that the essence of a coparcenary under the Mitakshara School of Hindu law is community of interest and unity of possession .A member of joint Hindu family has no definite share in the coparcenary property, but has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. Therefore, one coparcener would not have any right to dispose of either by gift or otherwise, even his undivided share in the coparcenary property without the consent of the other coparceners. It has been held in catena of decisions by the Supreme Court that a gift by a coparcener of his undivided interest in the coparcenary property is void. Beneficial reference of the judgments of Apex Court in case of T. Venkata Subbamma Vs. T. Rathamma, AIR 1987 SC 1775, and in case of Baljinder Singh Vs. Rattan Singh, (2008) 16 SCC 785 be made in this regard. 

 

BHASKAR (CONSULTANT)     07 February 2015

Thank you Adv. Kalaiselvan & Madam Jaya,

 I am confused by different opinions.

 Lawyer fraternity pl. guide me, finally in the matter !!!

 Bhaskar

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     21 June 2015

Kind Attention:  BHASKAR    (I am confused)

 

1.  Take a piece of paper.


2.  Draw EQUAL 8 slots on the paper


3.  This is undivided /unpartitioned property, which "cumulatively & collectively" belongs to all 8 members.  Here nobody knows which slot of land belongs to whom AND HENCE further nobody would be able to Gift /Sell any random number of any slot.


4.  Now number the 8 slots on the paper (1,2,3,4,5,6,7,8)

 

5.  NOW this becomes "divided property, with each numbered slot alloted to each of the 8 benficiaries.  This has now to "individually" reflect in the Revenue records (collector /tahsil office)

 

6. This means that the "numbered" and "divided" (say) plot no. 4, belongs to mother

 

7.  Now this "numbered" and "divided" plot no. 4, can be Gifted /Sold by mother.

 

8.  In case of point number 3 (above) since the plot was not divided (partitioned) it is not possible to determine which slot number can be gifted /sold.  Hence division /partition is lawfully essential, to Gift /Sell.

 


AFTER reading above, NOW read the Court judgement rightly quoted by "Jaya Pathak".  Now it will become easier to understand.

 

Keep Smiling .... Hemant Agarwal 
READ ARTICLES ON: https://hemantagarwal21.blogspot.in/?view=sidebar


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