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Vijay anand (Consultant)     12 May 2021

Property issues

My grandma has written registered a will in name of her son s 4 kids in the year 2008.since 2016 she is of unsound mind. In 2019 one of her grandson (who was not mentioned in the will) has received a gift settlement of the same property mentioned in the will. Will has never been cancelled.she is still alive and mentally unsound. How do we proceed in civil court. 



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 12 Replies

AFZAL VOHRA (Civil & Revenue Lawyer)     12 May 2021

The will is applicable only whe a person is not alive. However, any agreement is valid only when it is executed with full and free consent and of course in sound mind. In your case, giver is not sound mind amd hence that Gift is not valid. You need to challenge that Gift Deed in tje local court with medical papers of your Grandma.

Dr J C Vashista (Advocate)     12 May 2021

Prima facie both the documents are invalid, as analysed and advised by expert Mr. Afzal Vohra, which I agree and appreciate.

It is better to consult and engage a local prudent lawyer for proper appreciation of facts/ documents, professional advise and necessary proceeding.

Sankaranarayanan (Advocate)     12 May 2021

Well advised by  expert Mr Afazal Vohra i do stand with his reply 

Advocate Bhartesh goyal (advocate)     12 May 2021

Actually will comes in effect after the death of its writer so you can not take any advantage of will at this moment since your grand mother is alive.Every document is valid when its executer ,execute the same in good /sound mental condition,as per you your grandmother in unsound stat executed the gift deed so it is also in valid in eye of law.

Pradipta Nath (Advocate)     12 May 2021

Will is valid if it bears two witnesses and even during and after lifetime of the author, provided the author did not cancelled it or the will did not superseded any other conveyance deed made by the author! The will gets into effect after the author dies.

Challenge the gift deed and file an injunction to restrain your brother from taking possession or further selling or otherwise!

Advocate Bhartesh goyal (advocate)     12 May 2021

You should challenge the gift deed in civil court.

Vijay anand (Consultant)     12 May 2021

Sirs, 

Thanks and I appreciate ur valuable time for advising on this. Will do the necessary. 

P. Venu (Advocate)     12 May 2021

Who is in possession/occupation of the property?

Vijay anand (Consultant)     12 May 2021

The person who has got the gift settlement... 

SIVARAMAPRASAD KAPPAGANTU (Retired Manager)     12 May 2021

You can challenge the Gift Deed. However, from your query, it is not clear whether it is a registered or unregistered deed. And, challenging a Gift Deed based on an unsound mind is not easy. Unless you have strong proof of your Grand Mother being hospitalized in an asylum or proof of her using medicines normally prescribed for mentally not balanced people needed and the Doctor who prescribed to cooperate in Witness Box. There can be always an argument that the person is of sane mind but now and then occasionally becomes unsound and the Gift Deed was executed when she was of sound mind in which case it would be valid.

 

Since the matter is within the family and Grand Mother although allegedly of unsound mind, it is better to have a family meet with elders of the family present and the matter is settled amicably instead of wasting a considerable sum of money in court litigation.

T. Kalaiselvan, Advocate (Advocate)     13 May 2021

For your information a Will cannot become a title document until it becomes enforceable.

It will become enforceable only upon he death of the Testator.

Transfer of a property mentioned in the Will by a gift deed before the Will becomes effective is not an illegal act.  

A Will can be cancelled by the testator anytime during the lifetime.

If the gift deed was executed during the lifetime of the owner b y a registered deed, then it is very legally valid and cannot be challenged until and unless the owner or the party having interest in that property challenges the same on the grounds of fraud played by the donee/beneficiary to acquire that property. 

As of now you are not having any interest in the property that has been bequeathed in the Will which is yet to become  valid or come into force. 

1 Like

P. Venu (Advocate)     13 May 2021

Yes, at present, the beneficiaries of the Will have no locus to challenge the Gift deed. It is only after the lifetime of the testator that they can approach the Court.


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