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.
