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P Goverdhan Reddy (Lawyer)     08 August 2020

Cancellation of gift deed

sir good evening,  I have one doubt,  One of the 3 daughters of First wife  filed a case for partition in 2005.   Whereas their father executed Gift Deed  on 23.11.2004, (ie. before amnd act of HSA 2005) with regard to Ancestral Land in favour of his two sons of 2nd wife.  Further his two  sons executed the regd sale deeds in the year 2019 and 2020. But partition suit was decreed in favour of petitioner in the year 2007 and Final Decree in the year 2018 by awariding equal shares.      My question is, where these deeds  ie. Gift Deed, sale deeds are challenged in Court of law for cancellation  or not. 

 



 10 Replies

kavksatyanarayana (subregistrar/supdt.(retired))     08 August 2020

Yes.  approach the court to cancel the deeds of Sale and Gift.

{Balu manikantan} SUBRAMANYAM (Practising Advocate)     08 August 2020

when  the property is  an ancestral how can the father make a gift deed. And when the court has decreed in 2007 and  2018 how can they sell.

With the information provided we can say that the matter can be challenged in the court. But take care of the limitation. The limitation starts from the date of knowledge of the transaction.

Dr J C Vashista (Lawyer)     09 August 2020

Originally posted by : P Goverdhan Reddy
sir good evening,  I have one doubt,  One of the 3 daughters of First wife  filed a case for partition in 2005.   Whereas their father executed Gift Deed  on 23.11.2004, (ie. before amnd act of HSA 2005) with regard to Ancestral Land in favour of his two sons of 2nd wife.  Further his two  sons executed the regd sale deeds in the year 2019 and 2020. But partition suit was decreed in favour of petitioner in the year 2007 and Final Decree in the year 2018 by awariding equal shares.      My question is, where these deeds  ie. Gift Deed, sale deeds are challenged in Court of law for cancellation  or not. 

 

@ Mr. Reddy,

Whether the Gift deed and sale deed(s) were part of adjudication or not ?

Father had no right to execute gift deed for the entire ancestral property in favour of 2 sons of second wife, as stated by you..

Consequently sale deeds executed by them are illegal and invalid and required to be declared as "null and void".before civil judge of jurisdiction.

Need to go through case file, it is better to consult a local lawyer.

P Goverdhan Reddy (Lawyer)     09 August 2020

sir, Hindu succession (amdnmt) Act 2005, which was passed 5.9.2005, Sec 3(c) clear states that;

"Provided that nothing contained in this sub section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20.12.2004. "

Does it effect on Gift deed and followed by other sale deeds.  

P. Venu (Advocate)     09 August 2020

Was the gift deed challenged in the partition suit?

If not, had the defendants relied on the gift deed in their written statement? 

If so, was it an issue decided in the Judgment?

P Goverdhan Reddy (Lawyer)     10 August 2020

Not challenged, not relied in WS, and no issue decided

P. Venu (Advocate)     11 August 2020

The facts posted are less than convincing. It is inconceivable that the concerned defendants, i.e. the sons of the second wife and the donees of the gift deed, kept silent of the execution of the gift deed. So also, how could the survey and demarcation of the separate shares, requisite for the final decree, could be carried out and accomplished had the property been in possession/occupation of third parties?

P Goverdhan Reddy (Lawyer)     11 August 2020

sir thanks for sparing ur valuable time.  It is really a intrested case.  Donees ie. sons of second wife sold out the property to third parties.  in partition suit, they are also parties alongwith their mother and father as well.   They all were set expartie, as they were not contested.  Father expired in 2016, after the the preliminary decree passed in 2007.  Thereafter,  in the year Apr 2017,  the survey and demarcation was carried out in the presence of the Advocate Commissioner was appointed by court.  Then Final decree was passed in 2018.   But no one come up with any obj etc. till todate.   Right now, the third parties are exist as per the sale deeds.  

Now i would like to take up case for cancellation of sale deeds, including gift deed.  confusion of above amendmendt Act of 2005 clause (c) need to be clarified. with regards. 

P. Venu (Advocate)     11 August 2020

Any proceedings would only complicate the issues. Moreover, an action for cancellation amounts to multiplicity of proceedings, and hence impermissible. So also, the plaintiff could be inviting the charges/allegations as to the suppression of material facts. having had the knowledge of execution of the gift deed, the plaintiff ought  to have been part of the pleadings in the partition suit and sought appropriate reliefs.

Now that the partition suit has reached the final stages, it is prudent for the plaintiffs, in my understanding, to take possession/occupation of their shares through the due process of law and due documentation.

It is not known whether the trial court has given the finding that the property is ancestral. If so, it further strengthens the hands of the plaintiffs in as much as the Supreme Court has held today that the 2005 amendment to HSA is retrospective in operation.

P Goverdhan Reddy (Lawyer)     11 August 2020

sir, it is confirmed that trial had given that the property is ancestral.  

SC judgement i am not aware.  


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