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Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     18 March 2010

Ancestral property cannot be gifted away : HC

Dear All,

 

This was reported in  "Times of India,  dated 18 March'2010, Mumbai edition, page 04".
(read article, as reproduced below)

 

Ancestral property cannot be gifted away : HC

 

Mumbai: No part of an ancestral family property can be “gifted’’ away, the Bombay high court has held in a significant order while resolving the dispute over a 69-year-old gift deed. Justice C L Pangarkar declared as void the document dating back to 1941, which said that Miraj resident Mallapa had gifted a portion of his ancestral property to his second second wife Chandrabai “out of love’’.
 

 

   Referring to Hindu laws, Justice Pangarkar held that the “coparcener” or co-heir had no power to gift a joint family property, unless he is the sole surviving legal heir.

 


   The Hindu laws of succession and inheritance are governed by two major traditional legal treatise—the Dayabhaga school that applies to Bengal and Assam and Mitakshara, which governs the rest of India.    Mitakshara says that each person on his or her (following the 2005 amendment giving a daughter equal property rights) birth acquires an equal interest with his/her father in the joint family property. However, under Dayabhaga as long as the father is alive, he is the master of all properties whether ancestral or self-acquired.


 

   Justice Pangarkar pointed out that as per Mitakshara, a person can gift a portion of the family property only during for certain eventualities — “during distress for the sake of the family and especially for pious purposes’’.


 

   The case before the court related to a property in Miraj belonging to the Isapure family. The property was divided between Mallapa Isapure’s two wives and their sons in 1959. Subsequently, Mallapa’s second wife Chandrabai claimed that in 1941 he had gifted her a portion of the property that was now in the possession of the sons of the first wife.        A trial court ruled against her, but a district court order went in Chandrabai’s favour. Mallapa’s sons from his first wife then moved the HC. Chandarabai’s lawyers claimed that the disputed property was the self-acquired property of her husband Mallapa. The HC, however, pointed to the 1941 gift deed which mentioned that the property was a joint family property.
 

 

   “The only reason given in the gift deed is that the property was being gifted out of love,’’ said the judge, adding that, the property was not gifted to Chandrabai for any of the exceptions mentioned in Mitakshara. Citing an earlier judgment on the issue by the HC, the judge said that if a donor was to give away what did not belong to him, such a gift would be treated as void.
 

 

   “The gift deed in this case has to be treated as void ab initio,’’ said the judge ruling that the sons of his first wife are the owners of the property in dispute.
 



Learning

 11 Replies

darlene (Homemaker)     18 March 2010

If a father is the sole owner of ancestral property and he has divided and gifted the property to his sons during his lifetime... then is this gift deed void ?

Daksh (Student)     18 March 2010

Dear Hemant,

The preposition is correct but it would have been more appropriate if the heading could be :

"YOU CAN'T GIFT MORE THAN YOUR SHARE IN ANCESTRAL PROPERTY" HOLDS MUMBAI HIGH COURT.

Best Regards

Daksh

darlene (Homemaker)     18 March 2010

your suggestion makes sense...which is why I want my query answered....cause the headline is pretty misleading.

ADVOCATE SRIDHARABABU (Advocate)     18 March 2010

 

AIR 1987 SC 1775:- Hindu Law−−Mitakshara School of Hindu Law−Gift by a Coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners−−Whether valid or void−−Held−Valid. Here you have to see that gift is done to another co-parcener.  It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior con− sent of all other coparceners. Such a gift would be quite legal and valid.

 

 

The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has de− veloped gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary proper− ty. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary proper− ty. The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a copar− cener can dispose of his undivided interest in the coparce− nary property by a will, but he cannot make a gift of such interest.

 

 

Mulla’s Hindu Law, Fifteenth Edition,

Article 258, which is as follows:−− "Gift of undivided interest.−− (1) According

to the Mitakshara law as applied in all the States, no coparcerer can dispose of

his undivided interest in coparcenary pro perty by gift. Such transaction being

void altogether there is no estoppel or other kind of personal bar which

preclude the donor from asserting his right to recover the transferred property.

He may, however, make a gift of his interest with the consent of the other

coparceners."

ADVOCATE SRIDHARABABU (Advocate)     18 March 2010

 

 

AIR 1987 SC 1775:- Hindu Law−−Mitakshara School of Hindu Law−Gift by a Coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners−−Whether valid or void−−Held−Valid. Here you have to see that gift is done to another co-parcener.  It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior con− sent of all other coparceners. Such a gift would be quite legal and valid.



The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has de− veloped gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary proper− ty. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary proper− ty. The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a copar− cener can dispose of his undivided interest in the coparce− nary property by a will, but he cannot make a gift of such interest.



Mulla’s Hindu Law, Fifteenth Edition,

Article 258, which is as follows:−− "Gift of undivided interest.−− (1) According

to the Mitakshara law as applied in all the States, no coparcerer can dispose of

his undivided interest in coparcenary pro perty by gift. Such transaction being

void altogether there is no estoppel or other kind of personal bar which

preclude the donor from asserting his right to recover the transferred property.

He may, however, make a gift of his interest with the consent of the other

coparceners."

girishankar (manager)     20 March 2010

Thank U sirs

narinder pal kaur (PRO)     10 June 2010

ok the gift deed has be declared void by the HC.........but what shall be the status of sale deed of ancestral property.. i mean if fater sells the land through proper sale deed...what shall be the status of that property

thanks

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     10 June 2010

MY PERCEPTIONS ON   RIGHTS TO  "ANCESTRAL  PROPERTY"  :

 

01.  Father means a person having children (legitimate or not = immaterial)
 

 

02.  Children derive automatic inheirtance rights under the HSAct, over his ancestors property.
        Children means ancestors children.
 

 

03.  Father is not "rightful owner" of  "inherited"  ancestors property (legacy)

 

04.  Father holds ancestors property, only for usage and as a custodian of his ancestors childrens.
 

 

05.  However   "ANCESTORS CHILDRENS"   have automatic "ownership" of his ancestors property, whether the father likes it or not.  (Subject to various parameters)


 

06.  HOWEVER,  if there are no Legal Heirs left (as described in "Class", under the HSAct), a person (successor last in-line),  MAY dispose off his ancestral, as he wishes to.

 

 

NOW :
07.  IF the father is not the "rightful owner" of his ancestors property, he cannot gift /sell /dispose off the ancestors property.


 

08.  IF the father is  ONLY a custodian of his ancestral property,  THEN the father is BOUND to pass on the legacy to his ancestors children (i.e. his childrens)that is his carry-forward custodians.

 


09.   IT IS IMMATERIAL  IF THE PROPERTY  "BUYER"  PERSON IS HIS OWN SON (ancestors children).   The  simple thing to introspect is  "Ancestors property CANNOT be   "Sold"   to ANYBODY, including his own sons / legal heirs".

 

 

FURTHER :
10.  IF a boozed father (seller) somehow hallucinates about the ownership of the property AND MANAGES TO SELL IT,  then he automatically becomes liable for prosecution under various laws, subject to the wishes of his ancestors childrens.


 

11.  The new owner (buyer)  can be left holding the  so called   "Sale Deed",  which shall be void, as far as the sellers ancestral "property" is concerned.


 

12.  The new owner (buyer) can file  "TIME-CONSUMING"  prosecution against the seller, under various laws, depending on buyers financial capacity, to recover his money (BUT NOT THE PROPERTY).


 

13.  The father's children (now call it as ancestors children) can simply sit back and enjoy the show, from inside their own ancestral property (and in some probabilities with the same money which their father has appropriated from the sale proceeds of the said property,  (hic...burrp...)).

 

HOWEVER, in exceptional cases, under certain circumstances, using various parameters,  a ancestral Custodian (father) MAY dispose off his ancestral properties without anybody's consent

 


QUESTION OF   "PROPER & REGISTERED   SALE-DEED" :

 

01.  You may make a  "proper & Registered  sale-deed",  even for Taj-Mahal or for that matter your neigbours flat or anything in India.   BUT that does not give it any legal importance (value),  IF the property does not belong to you.

 


02.  The state district sub-registrar,  (under the Registration Act)  is  "NOT"  within his jurisdiction to  verify the "rightful ownership or title or possession" of the  property deeds (sale/purchase deeds).   He is concerned with only certain parameters under the Registration Act  AND MORE PRIMARILY TO HIS  "REGISTRATION FEE"  and the respective State-Stamp-Duties).

 


03.  Under the Contract Act,  a sale deed requires only two persons  i.e.  a Seller and a Buyer.

 


04.  A sale deed is a piece of paper, duly stamped and registered,  BUT IT DOES NOT GIVE YOU  "RIGHTFUL  OWNERSHIP" .OR.   "TITLE"  .OR.   "POSSESSION",  TILL  APPROPRIATE AUTHORITIES HAVE  "DULY"  TRANSFERRED THE PROPERTY IN YOUR NAME,  THAT TOO   " A F T E R"   FOLLOWING DUE PROCESS OF LAW.

 

05.  The sub-registrar  is CERTAINLY   "N O T"  the authority to give you  "rightful ownership"  or  "title"  or  "possession"   or   "transfer"   the said properties in your name.

 


06.  Registering a Sale-Deed,  does not infer upon you ANY rights pertaining to the property,  "TILL"  appropriate authorities have  "duly"  transferred the property in your name,   that too   "AFTER"    following due process of law,  which involves,  transfer fees, clearance of outstandings, clearance of outstanding taxes, statutory NOC's,  indeminity bonds, under-takings and so on.

 


06.  Till all of the above is duly done,  the Sale-Deed is a scrap of paper,  which can certainly be capitalised at the local channa-singh'wala   OR  can be capitalised with the Dawood'BHAI  Company,  which is typically being done in many chronic property cases, in Mumbai.

 

 

QUOTE  :

''I don't believe in taking right decisions. I take decisions and make them right''

 

Keep Smiling .... Hemant Agarwal
 

1 Like

narinder pal kaur (PRO)     15 June 2010

thanks

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     06 November 2010

Refreshing for those who missed out and also for new forum members.

 

Keep Smiling .... Hemant Agarwal

Manoj Agrawal (director)     25 May 2012

My father received properties from my grandfather through a will (probate through a court) in 1990. Three years back he gifted half of the properties to a charitable trust without my consent.. We are three brothers and other two brother signed on the Power of attorney for gift deed and transfer of property to the trust. My name does not even appear in the POA.

The attorney in POA is a trustee of the trust. What I can do now ???? 


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