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Nagesh (private empolyment)     28 April 2024

Gift of immovable property

An immovable property is acquired by A . He dies. After his intestate death the property devolves upon his wife and one son. The property consists of Ground and First Floor. There is no partition effected between the mother and son.
Now it the mother wants to gift her ½ undivided share, right, title and interest in the land and Ground Floor Portion (where is she lives and son who is married is in First Floor) to her elder sister.
Can she gift the property independently, i.e. without the intervention of her son / consent of his son ?


 15 Replies

Dr. J C Vashista (Advocate )     28 April 2024

In order to get the gift deed registered it's better to get the property demarcated before hand and specify the portion

T. Kalaiselvan, Advocate (Advocate)     28 April 2024

Since this is considered as a single unit as the partition did not happen, the mother can enter into a mutual partition amicably with her son, get the property properly demarcated and register the partition deed before the concerned sub registrar, after which the mother becomes an absolute owner of her share in the property. She can then transfer her share of property to anyone of her choice by any mode. 

Shashi Dhara   28 April 2024

What is the reason to gift for elder sister, how old  or ages of both, what love and affection she has over her elder sister, when she has having aged major son, he neglects her, let she think twice before gifting it, she is senior citizen or not who maintains her, it is better to take consent of her son to avoid future litigations.

Dr. J C Vashista (Advocate )     29 April 2024

The donor cannot be asked the reason to donate his / her legitimate share to anyone of his / her choice.

P. Venu (Advocate)     29 April 2024

The posting suggests deeper issues. Please post complete facts.

Nagesh (private empolyment)     29 April 2024

Dear Mr.R.Venu,

I have presented all the  material  facts of the issue, without  surpressing the truth.  

The reason for the Gift:

Her son is not ready to effect partition and wants to enjoy the entire property after her mother's death.The Son is well placed and after his marriage is not taking care of the mother and is ill treating her. The mother  is struggling to make both ends meet,  with meagre income from her savings (to meet her medicals expenses and day today expenses ). Hence she has decided  that her share in the property should not be enjoyed by her son after her demise and decided to gift her share to her elder sister, who was of immense help to her during her early life.   

And by going through the valuable opinions of all the learned counsels, I feel the partition prior to Gift is the only solution left to avoid future litigations. Or Son should appear as consenting witness/confirming party to the Gift Deed.

I once again sinceraly thank all the Gentlemen for their valuable opinions.

And I welcom any  further suggestions

Thank you all .





P. Venu (Advocate)     29 April 2024

Who is in possession and occupation of the property -first floor as well second floor? Or, is it that the property is in joint possession/occupation?

Nagesh (private empolyment)     29 April 2024

Mother is in Ground Floor and the son and his family are in the First Floor. (no second floor)


P. Venu (Advocate)     29 April 2024

In the given facts, mother can execute a gift deed as proposed.

T. Kalaiselvan, Advocate (Advocate)     01 May 2024

For effecting partition, if the son is not consenting for an amicable and mutual partition, the mother can very well approach court with a suit for partition instead of wasting her precious time with her reluctant son.

She is a rightful owner of her share in the property hence she is not at his mercy, therefore she can poroceed as per procedures of law which will certainly put pressure on him when the legal battle in the court is stretched too long without any solutuion.

P. Venu (Advocate)     02 May 2024

To my understanding, provisions of Sections 44 of the Transfer of Property Act enable the coowner to transfer his/her share in the property even if in joint possession - 

44. Transfer by one co-owner.Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

In the given facts, the property is not joint possession, but each of the floors are in possession of each of  coowners; for all purposes, there has been a oral partition. It has been held by the Supreme Court  that  an oral partition of property is valid and binding if the parties follow it by treating the property as absolute owners and severing family ties. The court has also stated that there is no requirement to use a written instrument to effect a partition. It has also been held that an oral partition of joint family property is valid and binding on the parties if it is followed by severance in the family and dealing with the property as absolute owners.  

Parth Chawla (Lawyer)     02 May 2024

Hi, to help you with the understanding of this case I would like you to know that Section 8 of Hindu Succession Act, 1956 provides that the property of Hindu male dying intestate shall devolve firstly, upon the heirs, being the relatives specified in the class 1 of the schedule.

Class 1 heirs include sons, daughters, widows, mother, etc.

Section 10 of the Hindu Succession Act, 1956 provides how the property of an intestate shall be distributed among the class 1 heirs. Following rules are:

Rule 1.―The intestate’s widow, or if there is more than one widow, all the widows together, shall take one share.

 Rule 2.―The surviving sons and daughters and the mother of the intestate shall each take one share.

Here, in this case the person has died intestate therefore his class 1 legal heirs i.e. his son and widow will get his property to be divided among them as one share each. Both son and the widow are entitled to 50% share each of the total land. Now in order to ensure that both heirs get their equal share, the property must be divided into individual shares through a legal process of partition.

Partition can be done in a following ways :

A)      By way of mutual agreement- The family members can prepare a settlement agreement through negotiation to avoid any dispute. This requires all the members to voluntarily sign the agreement.

B)      By way of partition deed- A legal document is used to formally divide the joint property among co-owners. This needs to be registered and stamped at a sub-registrar office to become legally binding.

C)      By way of filing partition suit- Section 9 of the Partition Act, 1893 empowers the court of law to equally divide the property among the co-owners. This step is advised when one or more co-owner of the property do not agree for partition.

After successful partition of the property, when both the heirs get their individual share of the property the widow is the rightful owner of her share of the property and can transfer the rights of her property to her elder sister by way of registered gift deed at the sub-registrar’s office.

Hope this solves your query.


Parth Chawla

Nagesh (private empolyment)     06 May 2024

Dear Learned Councels,

Thank you all  very much for your valuable replies and clarfifications.

I particularly Thank 

Sri.Parth Chawla, Sri.P.Venu, Sri.T.Kaliselvan

for their additional information and clarification.



T. Kalaiselvan, Advocate (Advocate)     08 May 2024

Me. Nagesh, you are welcome for your appreciations.

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