cpc

mother's claim on father's self acquired property


My  father has executed a registered irrevocable & unconditional gift deed in favour of my brother  for his only self aquired property. My mother wishes to give me also a share in this property. Can  my mother challenge this gift deed in favor of  me? Can she challenge this through initiation of divorce while the gift deed is already executed?  Can divorce law make this gift deed null & void?  How can I get my share. Does my father has rights to gift all property to my brother without consent of my mother? My mother is not the co owner of property. Property was completly owned by my father & gifted to my brother few months back. My mother & father are residing in the same property for past 30 years. Does my mother has any right to claim a share in property? Can she claim for me to stay with her in that house for her care?

 
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Senior Partner

1. To all your questions the clear answer now is a big NO.
2. Infact your father, your mother and yourself are residing there on mercy of your brother who has now a clear title of the property.
3. Your mother will burn money in litigation fees if she attempts to partition now.  Law is very clear on this.

 
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Advocate

your father has got a right to gift/transfer/ will away his self acquired property to anyone he likes.  So, there should be no qualms about this fact.  But interesting question raises that once after he has gifted his propery by registered deed to his son, what right does he have on this property to stay in?  Transaction of gift is completed not just by registration of gift deed but also by handing over of the possession of the gifted property to the beneficiary.  In this case, even after gift has been given, still the father is in possession of the gifted property, which smacks of malafide intentions of the father-son duo to deprive the mother-daughter from the property.  In the absence of any licence agreement or lease deed between the father and son, if father still enjoys the gifted property, in my opinion, the entire transaction can be challenged.  On the basis of the few facts said by you, it can be argued that the husband anticipating divorce case from wife and subseqent payment of permanent alimony, which will be quantified on the basis of the immovable property owned by husband, to off-set such possibility went into fraud transaction of so called "gift deed".  you can put up the case on those lines.  

 
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Senior Partner

I disagree if you want your mother to lead a divorcee life then by all means follow @ Chandu's advise and live a fatherless life that also after 5-7 years due to vanilla divorce case and litigation expenses she is asked to cough initially. 

Bald reply, shame on such encouragements.  Yet same Expert says a Hindu wife would never like to divorce her husband but when property question comes then why not divorce him on drop of a hat – gr8 !!!!.

Also @ Chandu show this queriest one citation where wife got reversed “gift deed” after filing divorce when gift deed was executed much much earlier.

 

 
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@Tajobsindia ,  "Also @ Chandu show this queriest one citation where wife got reversed “gift deed” after filing divorce when gift deed was executed much much earlier."

What is the timeline if at all such  gift deed can be considered for cancellation, if there is any, On the basis of a transaction to avoid alimony. Can gift deed be questioned on grounds of mentaly weak conditions for my father during deed execution.

My father has inserted a clause mentioning 'son's are taking due care of him in old age, he is satisfied & happy with them, hence gifting his property'

In such consition, his stay in house after gifting the property can be questionable??

 
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Senior Partner

Ask @ Chandu to reply on what you are asking me as clarification, as I donot give such remedies to either gender queries here and also read para 2 of my reply.

Your quote from your own facts before us; “My father has executed a registered irrevocable & unconditional gift deed in favour of my brother XXX” + “My father has inserted a clause mentioning 'son's are taking due care of him in old age, he is satisfied & happy with them, hence gifting his propertyinterpreted in court as in blue below and rest of interpretation of Law is detailed below

Gift of immovable property: Where a gift is made to several persons and one of the donee does not accept the gift, only that particular gift becomes void and gifts to all other donees will be valid ref.: S. 125, Chapter VII, Transfer of Property Act, 1882).

A gift in which the parties agree that the same shall be revocable wholly or in part at the mere will of the donor is void wholly or partly as the case may be. In other words, the donor cannot be given the right to revoke a gift at his own will and pleasure.

 

However, if the gift provides that it can be revoked on the happening of a specified event which does not depend on the will of the donor, the gift can be revoked or suspended by the donor.

 

`Undue influence'

 

A gift can be revoked in all cases where any contract can be revoked except for lack of consideration.

 

In other words, in all cases where a contract can be avoided or revoked under the Indian Contract Act, 1872, a gift can be revoked by the donor on these grounds. In most cases, it is done only on the grounds of undue influence and fraud committed on the donor to make the gift.

 

In this regard, the term `undue influence' means that the influence over the donor by another person is of a coercive nature which forces the donor to act against his own will and willingness in making gifts. `Fraud,' on the other hand, suggests concealment of facts, misrepresentation of facts and some other camouflage to obtain certain benefits.

 

The charge of undue influence and/or fraud is in the nature of criminal charge which must be pleaded clearly and proved by cogent and reliable evidence.

 

Except in the above cases, a gift once made cannot be revoked.

 

However, where a gift is made irrevocable by specific recitals in the Deed of Gift itself, such a gift cannot be revoked by the donor under any circumstances.


Law re-visited in case in hand:

In the case of Sundar Bai vs. Anandi Lal [AIR 1983 Allahabad 23], the donee was a child and in the care of the donor himself. The High Court held that in such circumstance, express acceptance could not be insisted upon. In the case of Ponnuchami Servai vs. Balasubramanian [AIR 1982 Madras 281], the father himself was the donor and executed a gift deed in favour of his minor son. The parties continued to stay together in the said property even after the gift. In these circumstances it was held that the gift in favour of the minor would be deemed to have been accepted as the father himself was the guardian and had himself executed the gift-deed.

 

In the case of Vannathi Valappil Janaki vs. Puthiya Purayil Paru [AIR 1986 Kerala 110], the donors were real uncles of the donees who were minor children. Subsequently the donors revoked the gift on the ground that the donees were not bestowing proper love and affection on the donors which might endanger their future safety. The High Court of Allahabad on these facts inferred and came to the conclusion that the gift deed in favour of the minor children was definitely accepted or else there would have been mention in the revocation deed that the revocation was necessitated because the children no longer bestowed love and care on the donors. The relevant observations of the High Court deserve to be quoted:-

 
"When the gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift it is only normal to assume that the donee had accepted the gift because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift. Where the donors who were the real uncles of the donees stated in the deed of revocation that to allow the continued existence of the gift would endanger their future safety as the donees were not bestowing proper love and affection towards the donors which was expected by the donors from the donees as a recompense for the gift, that statement is clear indication that the gift had been accepted by the donees."


[Last reply on this thread from my end as I rarely exceed self bandwiddth limits unless I feel I need to interject myself in same query again]

 

 
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@Chandu

"Also @ Chandu show this queriest one citation where wife got reversed “gift deed” after filing divorce when gift deed was executed much much earlier."

What is the timeline if at all such  gift deed can be considered for cancellation, if there is any, On the basis of a transaction to avoid alimony. Can gift deed be questioned on grounds of mentaly weak conditions for my father during deed execution.

My father has inserted a clause mentioning 'son's are taking due care of him in old age, he is satisfied & happy with them, hence gifting his property'

In such consition, his stay in house after gifting the property can be questionable??

Can you please comment on this?

 
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clerk

1- i totally agree with Mr.Tajob(obviously)

2-no comment's @ chandu(advocate) as i've allready mentioned in point 1

3-@ Mr.Tajob - would it / had it served any purpose for / of giving the details in your next line - and i appreciate the effort anyway.

4-@contributor- as anyway's you'll have to hire an advocate either for the alimony/challenging the deed / for divorce - why dont you better check with him first as now you have your initial clarification ?

5- dont shuttle between Mr.Tajob and Mr.Chandu (now that Mr.Tajob has given a hint/clue on what to search the citation) you can carry it n check with your advocate . . . . .  after all you are paying him fee . . . . .

6- and you haven't mentioned whether your mom's allready filed for divorce ?

7- and why dont you and your mom ask straight away your brother to part a lil or share propertywise or monetory wise and solve it amicably . . . . .

8-and what is your stand ? i mean you are single/married and why you haven't raised your question in relation/pertaining to your rights / if you have any / what are they ? or try in that direction ??

hope this info or querry's are of sme use . . . . .

regards

anand

 
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advocate

THE QUESTION POSED HERE IS SIMPLE .I HAVE BEEN REQUESTED BY AUTHOR BY A PM TO ATTEND IT.

 

THE CLEAR CUT FACT IS THAT FATHER IS THE OWNER OF THE PROPERTY.

THEN LEGALLY HE IS FREE TO DEALWITH ANY MANNER OF HIS CHOICE.

SO HE HAS THE RIGHT TO GIFT AND HE HAS EXERCISED IT.

HE IS ALIVE AND ONLY HE HAS RIGHT TO TREAT GIFT DEED VOIDABLE ON THE GROUND

"CONSENT WAS NOT FREE" AND NO ONE ELSE NOT EVEN MOTHER.

MOTHER'S RIGHT IS RISTRICTED TO MAINTENANCE WHICH IF SHE IS NOT ABLE TO REALIZE

FROM OTHER MEANS OF HUSBAND,MAY AT BEST SEEK,CREATION OF A  CHARGE OVER THE

PROPERTY GIFTED,THOUGH THAT WOULD ALSO BE A TOUGH JOB TO HANDLE AS THE GIFT

HAS ALREADY BEEN COMLETED.

 

LIVING OF FAMILY TOGATHER IS NOT GOING TO AFFECT VALIDITY OF GIFT ANY WAY.

 

CONCLUSIVELY SPEAKING "RIGHT TO SUE TO TREAT GIFT DEED A VOID OR VOIDABLE VEST IN

OWNER DONOR TILL HE IS ALIVE,OTHER HEIRS /MOTHER OR SON OR DAUGHTER /MALE OR FEMALE

HAVE NO RIGHT TO SUE AS THEY DO NOT HAVE ANY  CAUSE OF ACTION"

 
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advocate

AFTER POSTING THE ANSWER I FOUND THAT DISCUSSION HAS GONE SPECULATIVE 

TOSSING OVER MOTHER'S RIGHT TO CHALLANGE GIFT ON THE GROUND OF MATRIMONIAL

RIGHTS OF DIVORCE AND ALIMONY.

 

FIRSTLY IT SHOULD NOT BE SEEN IN SUCH  A WAY ,SECONDLY EVEN IF SEEN

THE EYE OPENER FACT SHOULD BE THAT GIFT HAS NOT BEEN MADE TO FRUSTRATE

ANY DECREE PASSED NOR HAS THERE BEEN ANY MATERIMONIAL CASE PENDING BEFORE

THE GIFT SO THERE CAN NOT BE ANY MOUTH IN THE WORLD TO PLEAD THAT THE GIFT HAS

BEEN MADE TO FRUSTRATE A RIGHT OF THE OTHER .

 
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