LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
The Indian Constitution Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Abhilasha Vyas (Professional)     02 October 2012

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?



Learning

 23 Replies

Tajobsindia (Senior Partner )     02 October 2012

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.

Adv. Chandrasekhar (Advocate)     02 October 2012

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.  

Tajobsindia (Senior Partner )     03 October 2012

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.

 

Abhilasha Vyas (Professional)     03 October 2012

@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??

Tajobsindia (Senior Partner )     03 October 2012

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]

 

Abhilasha Vyas (Professional)     03 October 2012

@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?

andz (clerk)     03 October 2012

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

prabhakar singh (advocate)     04 October 2012

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"

prabhakar singh (advocate)     04 October 2012

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 .

danish (Manager)     04 October 2012

 

Respected Sirs

( registered irrevocable & unconditional gift deed )

 

The same is valid under muslim law ........... ?

Please let me know.

 

Adv. Chandrasekhar (Advocate)     05 October 2012

Before I again respond on this problem, let me pay my sincere respect and regards to Mr. Prabhakar Singh for his point of view and I have also had the opportunity to see his contribution on some other topics on some other occasions in experts section and for that I highly respect him.

@author,

The law is well settled, as I said in my first post, that a person is entitled to gift away his self acquired property to anyone he likes. As it is, it is not easy to put up your case in the court of law and also win it against such well settled proposition of law.  But does it restrict a person to put a new proposition of law before the court to get much required justice?  My answer is that a person who has a genuine grievance can put a new proposition supported by cogent reasons against a well settled proposition of law.  In your case, I see the complete injustice done to your mother by your father by gifting away his socalled "self acquired property" to his son and also at the same time extracting an assurance from son that the son will take care of HIS welfare in his old age.  In this whole transaction he has completely abdicated the responsibility of your mother.  Now, let us see the situation.  A man, like your father,  works in a govt. office/ private company and receives pay regularly.  His wife, like your mother, stays at home and does the non-paying job of "house maker" and provides physical, mental and spiritual comfort to him.  She maintains the household expenditure within the permissible limit and helps the husband to save a significant part of his pay every month and which he deposits in his bank account in his own name.  Years pass by, they get a boy and girl.  When the bank deposit in his name reaches to substantial stage, he purchases a house in his own name.  Now, the property is in his name and it is acquired by using the amount laid down in his own account.  He has not taken even a single penny from his wife to purchase such property.  In the eyes of law, it is his self acquired property as the title is in his name and the amount to purchase that property came from his own bank account.  If he does not will away the property, it will be shared between his mother, his wife, his childrent in equal shares.  But during his life time he gifts away the property to his son, excluding his wife and daughter.  At the time of gifting the property, he takes assurance from his son that in his old age, his welfare will be taken care of.  There will be no whisper about the welfare of equally old wife and young unmarried daughter.  He simply ignores the wife's contribution which helped him to save significant part of his pay in the savings.  For house making, he merely paid  her food and cloth.  Now in the wake of these facts, can't the husband's declaration that the property which he gifted to his son is a "self acquired property" be challenged?  Can't the wife claim, that even though the bank account was in the name of her husband from which money flowed and the property's title was in the name of husband, she has got her share in the property for the reason that due to her parsimonious way of maintaining the house, her husband could make it to own a property?  Can't the wife ask the court to properly evaluate her home making job and other arduous duties of children bearing and rearing, which she assiduously discharged.   Can't she ask the court that her husband while securing his old age welfare by mortgaing the property in the guise of gift, completely abdicated the responsibility of wife and unmarried daughter?  My answer for these questions is yes.  Undoubtedly the case is difficult, but it is worth trying as a large number of women have been facing the same problem in our patriarchial society.  Let me recall, that on the basis of the facts and also on the basis of the settled law, it was also difficult to get maintenance to a muslim divorced wife, but in Shahbano's case when the settled proposition of law was challenged, the hon'ble SC saw the necessity to deliver justice instead of just interpreting the law and unsettled the earlier proposition of law and created a new one and tried to provide succour to the destitute women.        

Abhilasha Vyas (Professional)     06 October 2012

Well I am married . Both I and my husband are earning a decent salary. I want my mother to get atleast half of the property on any valid ground like she is staying there for past 30 years and she will need that house in her old age. As of now my father and my brothers are taking good care of my mother as well. However I can convince my mother to deny that.  Also Can I make a ground on apprehensions that in future she may be neglected by them? On what ground my mother can claim share in property? I father is a pensioner and my mother will be getting pension after my father.

Tajobsindia (Senior Partner )     06 October 2012

This is just a pure misuse and extra ordinary influence of empowered married daughter into her present harmonious natal family which is unique first here to know how law can be misused.

1. Your father says he is being taken good care of by sons. He has no complains from your mother nor mother has any complaint from your father.

2. You say your brothers and father are taking good care of your mother from last 30 years.

3. You say post your father’s death his pension benefits she will get.

And

4. You say you and your husband are decent earners.

5. Your mother is not shown to be complaining in any of your three thread post in LCI till date.

But, no where you say you and your husband inspite of decent earning are taking good care of your mother other than provoking your mother to challenge some imaginary revocation of already completed Gift Deed?

Yet you want her to be divorced on communist ideas of @ Chandu which is nothing but misuse of Law.

However we have also seen your old message in Property Law Forum link which no Expert replied as once Gift Deed completed it is not possible to revoke other than person gifting it which I explained in my earlier two detailed reply and same was said in minimalist wordings by Mr. Prabhakar too.

https://www.lawyersclubindia.com/forum/details.asp?mod_id=46892&offset=2


If you have so much concern for your 30 years old marriage of mother then from you’re and your husband’s decent income gift her a 1 bed room flat and anyhow post your father’s death his pension and other benefits are anyhow going to come to her with which she will pull her rest of the life minus provoked alienation of her sons and you as her only relative left!


Well for some imaginary share of property for your mother by all means get her provoked for a forced divorce in her old age and try revoke the already completed gift deed by appointing @ Chandu as her Advocate as he is expert in such provocation matters thy name women sensitive answers here.

And here is rejoinder tribute to @ Chandu and his grandstand provoking ideas in the name of ‘sensitive replies to women queriest approaching Law”

The Supreme Court bench of Justices S B Sinha and H S Bedi, ruled that gifts from parents to children could not be rescinded later had said two months ago that parents could disentitle their son from inheritance if he neglected them. Ashokan from Kerala was gifted land by his mother through a registered gift deed out of “love and affection” on January 4, 1984. His father followed suit saying it would help him lead a good family life. But after one-and-a-half years, the parents cancelled the deeds saying Ashokan had failed to render financial assistance to the family though he worked in Oman. They were also upset he did not fulfil his promise to contribute Rs 1 lakh for his sister’s marriage.

 

Ashokan approached the trial court seeking quashing of the two documents executed by his parents through which the gift was cancelled. Despite the breach of promise cited by the parents, the court ruled that once the gift deed had been executed, it could not be revoked “by the mere fact that the donor’s feeling towards the recipient underwent a change”.

 

The parents had protested that if the deeds were kept alive, it would be fair to fear that the son would evict them from their own land. The district court ruled in favour of the parents saying the son had not taken possession of the land, nor paid tax, nor mutated it in his name. The Kerala HC upheld this decision.

 

Ashokan approached the SC challenging the HC’s decision. The SC said the gift deeds were executed out of love and on the ground that the recipient was the son of the donor and to enable him to live a good life.

 

“Could the parents now turn around and say he was to fulfil a promise? The answer must be in the negative. It’s one thing to say the execution of the deed is based on an aspiration or belief, but another to say the same constituted an onerous gift,” said the bench. The SC revived the gift deeds originally made by the parents and said, “Once a gift is complete, it cannot be rescinded.”

1 Like

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     08 October 2012

 

I am not a lawyer. But still I feel that all those who have responded, except Advocate Chandu, have stated only what the position was under the law. In order to give such a ruling we need only a computer and neither courts nor lawyers. As a computer cannot give orders, there can be a judge, who can give orders based on what the computer says.

I do not understand where the need to make a gift deed was?  If the father wanted to transmit his estate only to his son, he could have done by writing a will. Thus he and his wife would not lose their right to live in the house. If the father throws out his wife from his own property, there are gender laws under which such action on the part of a husband can be challenged in a court of law. But now if the son does the same with regard to his mother, would the law have done justice to the wife, who is mother to their son? If law fails to administer justice, the court, particularly the Supreme Court, has to step in. I quote here a somewhat similar case, where everything was strictly according to law, but justice was not done.

In Mumbai a person had two daughters. He also owned a decent flat in a good locality. After his death the flat went to his wife according to the bequest made by him. Both the daughters had got married and had gone to their matrimonial homes. After the death of her father the elder daughter came to stay with her mother ostensibly to give company and protection to her old mother. After a few months, she prevailed upon her mother and got the flat transferred to her own name through a gift deed. The younger daughter challenged the gift deed through a lawyer notice. Then the two sisters met and settled the issue probably giving compensation to the younger sister.

After a couple of years, the elder daughter sold the flat for a fabulous sum. She convinced her mother that she would put in additional funds and purchases a big flat, where her mother could stay with her daughter, son-in-law, grandchildren and even great- grandchildren. In any case the mother was helpless.

Later she purchased a luxurious flat for herself and family. She purchased another small flat in an isolated not-so-safe place for a senior citizen and put her old and infirm mother there. The old lady was compelled to move from a good and safe locality, where she had friendly neighbors of many years. Everything was legal here. But has justice been done to the old lady. Abhilasha’s mother will get family pension if she survives her husband. But if her son or daughter-in-law throws her out what will she do for shelter. Could her husband have done something like that to his wife?  The Shah Banoo case was application of Section-125 [I am not sure about the number] of Cr. P. C. The particular section is applicable when the husband is alive. But can a husband do such a thing during his lifetime, which will have the same effect as Section: 125 but only after his death.

I would suggest to Abhilasha, to engage a resourceful lawyer, who has no one track mind.

1 Like

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading

Post a Suggestion for LCI Team
Post a Legal Query