Gift deed sunni hanafi law
Mohamed Ali
(Querist) 30 December 2013
This query is : Resolved
We are Sunni hanafi family...
My grandmother has 2 sons A and B..She is inheriting property from
her mother in a partition suit filed by here mother,which is still pending in Final decree proceedings in which her mother is entitled for 1/10th share.
My grand mother is entiled for 1/3 rd share in the 1/10th share of her
mother, She wants to gift 1/6 th of her 1/3 rd share to orphaned grandchildren throguh gift deed.
Question: My father has expired, My grand mother wants to Gift 1/6th share out of her 1/3rd to me and my sister.. As per Sunni hanafi law an undivided share(MUSHA) can be gifted, I prepared a gift deed and went to sub-registrar mentionioning all all the decree shchedule properties in the gift deed and saying that my grandmother's mother is entiled for 1/10th share as per preliminary decree in the pending suit and now my grand mother is gifting share out of her 1/3 rd share to us.
But the subregistrar says all the gift deed properties must me in name of my granmother, proof which has to be given, then only the Gift deed can be registered as per registration and stamps act, or else it cannot be, I explianed it is only the amount of share is gifted in properties we are not taking physical possession now..
Subregistrar argument is he does not care about personal law, he is only concerned with registration and stamps act which says the property has to be in name of donor in order to be gifted, which is the confusion as here the property is still pending in a final decree proceedings only the shares have been declared...
Thanks Ali
T. Kalaiselvan, Advocate
(Expert) 31 December 2013
In the absence of a decree from court of law confirming your grandmother's 1/3rd share out of her mother's 1/10th share of the ancestral property, your grandmother cannot legally claim her share so mentioned above. Therefore the registrar is right in rejecting the registration of the gift deed intended to be registered by your grandmother in favor of her grans children. It is not the question of stamp duty law but the question of title by the donor to the beneficiaries.
Mohamed Ali
(Querist) 31 December 2013
Sir,
As per Mohameddan law daughter is entitled for 1/3 rd share in her parents property, hence in that 1/3 rd share she is gifting 1/6 th to her grand children.. But the reigstrar is of the opinion that unless there is Khata of all properties in my grand mother name he cannot register the gift deed, As the properties are part of pending final decree proceedings it is not possible on the share of great grand mother is declared after her death my grand mother is part of the proceedings.. Kindly suggest can we file a seperate suit to declare that my grand mother is entitled for 1/3 rd share in her mothers property.. The that suit decree we can produced to registrar then also his contention will be properties must be in name of my grand mother, any alternative kindly suggest as my grand mother is getting too old..
Thanks
Rajendra K Goyal
(Expert) 31 December 2013
You may wait till final decree is received. Registrar is right in not registering till donor has clear title in the property to be gifted.
T. Kalaiselvan, Advocate
(Expert) 31 December 2013
It is agreedthat as per Mohamedan Law is entitled to 1/3rd share in her parents property and she becomes a successor/co-sharer immediately on the death of the intestate deceased. This is law until there is no dispute about the title,whereas there is a lis pendens (litigation pending) with regard to the properties proposed to be gifted now, thus the title of the donor is unclear and is pending confirmation of the court of law in a civil suit. So the registrar has rightly rejected the registration/execution of gift deed in the absence of court judgment on the issue, wait until then.
