Advocate B. M. (Advocate) 18 February 2011

Gift Deed without right and interest

A mother who was co-owner of property with her husband and son after husbands death gifted the entire property to her one daughter. Now son comes to know after death of mother about this gift deed and that on same day of gifting to daughter, the daughter assigned to a developer. mother died one year after this. Now developer has trespassed into property. Besides criminal case of fraud on both the daughter and developer, can a case be filed for declaration of gift deed as null and void under specific relief act in civil court of bombay? or at least for declaration of so much of property in the gift deed as does not belog to mother, but belongs to son? what is best remedy suggested? valuation of property will result in high court fees, which needs to be avoided as son is not well off and cannot afford it.

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sumit srivastava (Advocate) 18 February 2011

You have not mentined whether the parties are hindu or muslim. Anyways i am assuming them to be hindu answering ur ques.Well in this case you have a good ground to ask for declaring the gift deed as null and void as becuse after the death of husband the widow i.e, mother does not become the sole owner of the property rather the son, widow and the daughter have equal share in the property as being Class 1 heirs under Hindu Succession Act,1956. The wiodow is only entitled to gift her own share to the daughter and not whole of the property. So at the most what the daughter can get is her own share as well as share of the mother which she got by gift. They can not take away the share of the son. The remedy available to the son is that since he has been dispossed by the trespasser i.e, the developer and if he can prove that he was in the possession immediately before the date of such dispossession and such dispossession has taken place within 6 months he can file a suit under Section 6 SRA for recovery of possession along with the declarotry decree u/S 34 SRA that he is the owner of his share and praying to declare gift deed null and void. Hope i have been able to clear your doubts.

Advocate B. M. (Advocate) 21 February 2011

Thank you Mr. Srivastava. This has clared few doubts in my mind and now Iam confident that Iam on right track. They are Hindus. He has already filed an Application u/s 145 CrPC for declaration of possession which is being heard and another criminal complaint on fraud and forgery against both sister and developer.

So an SRA section 34 will help in declaring the gift null and void.

However if u could clarify whether it has to go under tenants in common as u said or under joint tenancy. b'coz they do have unity of time, posession,and title. so under joint tenancy, the daughter will not get a share. prop will then devolve upon the other two co-owners mother and son isnt it? then son is entitled for 50% of property along with mother on demise of father.

Shall appreciate if you could clarify this too. thanks a ton.

sumit srivastava (Advocate) 23 February 2011

Ms. Menon u r right that it is joint tenancy as the shares are not yet determined but joint tenancy do not take away the right of the daughter to claim share in the property. She is very much a coparcenar like as son so she is also entitled to claim share in the property. regards.