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CA Adarsh Agrawal (CMD of SHAYVIDZ Group)     15 May 2010

HC : Ancestral property cannot be gifted away

Ancestral property cannot be gifted away : HC

  

No part of an ancestral family property can be “gifted’’ away, the Bombay high court has held in a significant order while resolving the dispute over a 69-year-old gift deed. Justice C L Pangarkar declared as void the document dating back to 1941, which said that Miraj resident Mallapa had gifted a portion of his ancestral property to his second second wife Chandrabai “out of love’’.

Referring to Hindu laws, Justice Pangarkar held that the “coparcener” or co-heir had no power to gift a joint family property, unless he is the sole surviving legal heir.
  
The Hindu laws of succession and inheritance are governed by two major traditional legal treatise—the Dayabhaga school that applies to Bengal and Assam and Mitakshara, which governs the rest of India. Mitakshara says that each person on his or her (following the 2005 amendment giving a daughter equal property rights) birth acquires an equal interest with his/her father in the joint family property. However, under Dayabhaga as long as the father is alive, he is the master of all properties whether ancestral or self-acquired.
  
Justice Pangarkar pointed out that as per Mitakshara, a person can gift a portion of the family property only during for certain eventualities — “during distress for the sake of the family and especially for pious purposes’’.
  
The case before the court related to a property in Miraj belonging to the Isapure family. The property was divided between Mallapa Isapure’s two wives and their sons in 1959. Subsequently, Mallapa’s second wife Chandrabai claimed that in 1941 he had gifted her a portion ofthe property that was now in the possession of the sons of the first wife. A trial court ruled against her, but a district court order went in Chandrabai’s favour. Mallapa’s sons from his first wife then moved the HC. Chandarabai’s lawyers claimed that the disputed property was the self-acquired property of her husband Mallapa. The HC, however, pointed to the 1941gift deed which mentioned that the property was a joint family property.
  
“The only reason given in the gift deed is that the property was being gifted out of love,’’ said the judge, adding that, the property was not gifted to Chandrabai for any of the exceptions mentioned in Mitakshara. Citing an earlier judgment on the issue by the HC, the judge said that if a donor was to give away what did not belong to him, such a gift would be treated as void.
  
“The gift deed in this case has to be treated as void ab initio,’’ said the judge ruling that the sons of his first wife are the owners of the property in dispute.



Learning

 8 Replies

G. ARAVINTHAN (Legal Consultant / Solicitor)     16 May 2010

What in case if a person gifts his share of ancestral property?

adv. rajeev ( rajoo ) (practicing advocate)     16 May 2010

He can dispose his share but not entire ancestral property.

Seshagiri Viswanatha Rao (Asst Secy to Govt Retired)     16 May 2010

SELF ACQUIRED PROPERTY

DISTINGUISH BETWEEN SELF ACQUIRED PROPERTY AND ANCESTRAL PROPERTY

IS SELF ACQUIRED PROPERTY CAN BE GIFTED AS ANCESTRAL PROPERTY IS IT VALID IN LAW IN CASE A PERSON CLAIMS AS GIFT /ANCESTRAL PROPERTY ON THE SELF ACQUIRED LANDED PROPERTIES OF OTHER PERSONANY COURT ORDERS AND IF SO TO KINDLY INDICATE ITS VERDICT

THANKING YOU

SV RAO

V. VASUDEVAN (LEGAL COUNSEL)     16 May 2010

A person has three children - two of them female and one son (all of them married). He gives his property

as gift to his son despite objections from the one daughter (undue pressure from the son and fearing security

for his life). The gift deed is witnessed by his wife and one of the daughter . Is this valid. What is the time limit for challenging this, by the aggrieved daughter.

Seshagiri Viswanatha Rao (Asst Secy to Govt Retired)     17 May 2010

Thanks you very much for reply My late father had purchased lands in the Ranga Reddy District  self acquired property of the original title holder of the landed properties Its neither ancestral nor gift and father purchased as self acquired property  Now it has been registered anestral property as gift settlement deed between a husband and and wife illegally by means of fabricating original documents CAN A SELF ACQUIRED LANDED PROPERTY BE REGISTERED AS ANCESTRAL PROPERTY AS A GIFT AND IS SUCH TYPE OF REGISTRATIONS ARE PERMISSIBLE UNDER THE RELEVANT ACT/RULE/SECTION PERMISSIBLE these illegal transactions have taken place after demise of late father who expired in Jan 1987 whereas rthe illegal transactions have taken place in Dec 2001 (more than fourteen years after death of father)  My late mother has also expired long back  However, the title deed in favour of father only even as on date

Thanking you

SV Rao

Audry Fernandes (nil)     17 May 2010

Advocate Rajoo states that he can gift away his share but not entire ancestral property!

I would understand when a person gifts away ancestral property to one of his children or wives, he would gift away his share! He certainly cannot gift away his brothers/sisters share.

Please clarify what you mean?

Thank you

Seshagiri Viswanatha Rao (Asst Secy to Govt Retired)     21 May 2010

Dear Advocate

Good Evening

In case of any illegal transactions resulted anywhere whether a joint complaint may be lodged by the living absolute living legal heirs to the Commissioner of Police concerned prior to filing a case before the competent court and its report will also strengthen the case when it is filed before the court.

Thanking yoi

SV Rao

Hyderabad

bhagwat patil (Property due diligence 9422773303)     24 May 2010

imp. information.


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