Who is the real owner ?
Querist :
Anonymous
(Querist) 17 September 2011
This query is : Resolved
Mr.X had executed a revokable will stating that his self earned property ie three storied building will be given to his son after the death of Mr.X. After 2 years Mr.X had gifted the same house without any conditions to his son's unmarried daughter. After one year the said daughter got married and settled in her life. One year after the marriage Mr.X revoked the gift deed. Then after one year Mr.X died.
The will, gift and all the documents ie the will, gift deed and gift revoked deed are registered in the sub registrar office.
Now, I wish to know who is the real owner of the house - the son or the son's daughter ?
Devajyoti Barman
(Expert) 17 September 2011
Please understand there is nothing called revocable or irrevocable Will.
Now the Will ca anytime be changed or terminated by the testator.
In this case when X executed the gift , the Will ceases to exist.
The gift once executed can not be revoked or cancelled,
So the the said grand daughter is lawful owner of the house, not the son.
M/s. Y-not legal services
(Expert) 18 September 2011
Yes. Nicely advised by mr.barman. Gift once executed and accept mean its can't be revoke.. So right now son's daughter only the owner of the schedule property as per the gift deed.
Sailesh Kumar Shah
(Expert) 18 September 2011
Son's daughter is an absolute owner of the gifted property.
Guest
(Expert) 18 September 2011
The will had already become infructuous on subsequent execution of gift deed. Gift once given becomes absolute and cannot be snatched even by cancellation of the gift deed, as any such cancellation of gift deed is null & void, unless the gift would have been returned by execution of a separate gift deed by the son's duaghter to grand father or to her own father.
So, the son's daughter was and is the real owner during and after the life of her grand father.
prabhakar singh
(Expert) 18 September 2011
You have a lot of confusion about law.
A WILL is governed by provisions of Indian Succession Act,and comes in force after the death of person who made it.BY this deed he has been given choice to override succession law of which he is subject and the person making the WILL is called TESTATOR;
and the testator has right to change hisWILLas many times in his life time as he desires.The law is so that the LAST WILL of the testator shall prevail and be obeyed for succession.
As against that a GIFT a mode of transfer of property available to a owner just like a sale with only one exception that it is made with out any consideration and the general rule laid down in section 25 of Indian Contract Act is saved by 25(1)of the Contract Act,which reads"(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; ."but for consideration element any GIFT of property is defined in the Transfer of Property Act,by its section 122,to read.: "Gift" defined"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee." THE MOMENT A GIFT IS MADE BY THE DONOR(the owner) AND ACCEPTED BY THE DONEE(the receiver of gift)THE ALL RIGHTS TITLE AND INTEREST THAT WAS WITH THE DONOR STANDS TRANSFERRED FORTHWITH TO THE DONEE AND DONOR CEASES TO HAVE ANY CONCERN
WITH THE PROPERTY GIFTED BY HIM.NOW THE DONOR CAN NOT CLAIM BACK THE GIFTED PROPERTY FROM DONEE. SUCH GIFT CAN BE AVOIDED ONLY BY A DECREE OF CANCELLATION IF DONOR IS ABLE TO SHOW IN A COURT OF LAW THAT HIS CONSENT TO GIFT WAS NOT FREE,BUT WAS INFLUENCED BY COERCION or DURESS, FRAUD
or MISREPRESENTATION or UNDUE INFLUENCE etc.,as provided in the sections 15 to 19 of the said contract Act.THE DONOR CAN NOT ON HIS OWN CANCEL THE GIFT.HE NEEDS A DECREE OF COURT JUST AS HE REQUIRES IN CASES OF A SALE.
GETTING CONFUSED "cancellation" with "REVOCATION" OF A GIFT IS A WRONG WAY TO UNDERSTAND THINGS.
REVOCATION OF A GIFT IS ALL TOGATHER A DIFFERENT PHENOMENA AND LAW REGARDING REVOCATION OF A GIFT IS LAID DOWN IN SECTION 126 OF TPA TO READ "126. When gift may be suspended or revoked:::::
'The donor and donee may agree' that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
A CAREFUL PERUSAL OF PROVISIONS LAID ABOVE WILL LEAD ANY BODY TO CONCLUDE THAT REVOCATION OF A GIFT IS NOT AN UNILATERAL ACT OF DONOR BUT A BILATERAL ACT OF DONOR AND DONEE BOTH THAT TOO ON ATTRACTION OF CONDITIONS LAID IN THE SECTION.
Now you can safely conclude on facts stated by you that as WILL of Mr.X was never to come in force during his own life time,he was very much competent to transfer the property to any one in any legally recognized way of which he chose the GIFT,
and transferred to his son's unmarried daughter,who forth with after completion of GIFT became absolute owner STEPPING IN SHOES OF Mr.X,AND Mr.X REMAINED NONE OF THE HOUSE GIFTED.
Mr.X had no right what so ever to REVOKE THE GIFT AS DISCUSSED EVEN A MOMENT LATTER
AFTER GIFT BECAME ABSOLUTE.
SO BEING THE CASE THE DAUGHTER OF Mr.X'SON IS THE OWNER OF THE HOUSE.
Shastri J.K.
(Expert) 18 September 2011
I agree with mr.Shailesh Kr. Shah.
Raj Kumar Makkad
(Expert) 18 September 2011
I do agree with experts except Chanchal.
kuldeep kumar
(Expert) 20 September 2011
such a nice movie is director by mr expert prabakar singh ji..i m fully agreed to his views..
girish shringi
(Expert) 23 September 2011
I will go with all the experts comment,everyone has done the best.
Advocate Bhartesh goyal
(Expert) 18 September 2011
