Fraud property gift deed
DEBASHISH KARMAKAR
(Querist) 15 March 2013
This query is : Resolved
I am only son taking care of my retired (1983) father & mother and elder widow sister with 2 daughters. My father & me gave shelter for widow sister after expiry of her busband in 1982 (being rejected by inlaws). We are in joint family/mess under one dining table. Slowly constructed our dwelling house on my father's land with help of housing loan from my PF account against written authorisation by my retired father for construction as he is crippled financially. Father became physically crippled with head shaking/bent back/incoherent speech/virtigo (I have those doctor's prescription).
Suddenly came to know in 2011 that my sister got one gift deed in 2007 (witness -my old mother) for almost the whole building. Father expired at the age of 87 years in 2009 - first knowledge came to me in 2011 - no delivery of possession was done in 2007 and till father's death - no information to legal heirs. Now sister has locked the main entrance gate of our building (2 storey)to bar entry to me & my family members.
Would be really grateful if you please advise how to challenge such fraudulant gift deed and whether should I win the challenge or not. Should I go in for criminal case?
Pradeep MK
(Expert) 15 March 2013
You have following remedies
I)To file suit for partition saying that the land and house is joint family property and you have also contributed for the same in constructing the house.
You have to prove in the court of law that the property in question is joint Hindu family property and acquired and developed by you and your father jointly.
In such suit along you can claim 1/3 share (here it is presumed that your mother is alive).Otherwise you can claim 1/2 share in the property.(Pl see Section 8 of Hindu Succession Act)
You can claim injunction against your sister from not disturbing your possession and enjoyment of the property.
II) You can also file suit for declaration that the gift deed is void and not binding upon you.Such suit needs to be filed within 3 years from the knowledge (pl. see Article 59 of Limitation Act). You can also take a plea in such suit that your father has no right to gift the entire property.
Above both suits can be filed together.
However please note that you cannot oust your sister totally as she has right to claim partition in the property under Hindu Succession Act.
The Criminal complaint may not be tenable as the dispute is of civil nature.
Based on the facts narrated you have fare chance of success in the Civil Suit.
Raj Kumar Makkad
(Expert) 16 March 2013
Well advised by expert on all aspects of the query.
DEBASHISH KARMAKAR
(Querist) 18 March 2013
I am really grateful to you, Respected Sir, for your kind advice. I am really motivated to challenge. Won't disturb you any more except my following facts - lastly please give your views :-
Mother is alive & father/mother were staying in one room on ground floor - in the gift deed of 2007 there is no provision of their staying in that room till their expiry as the whole ground floor was gifted to siter. Now my mother is totally handcuffed by my sister, not allowing her to speak to anyone & passing days like a jail cell (as my mother signed as prime witness in the fraudulant deed) and fully dependant on sister's mercy to stay in that room till her death. My sister can now any time throw out my mother from her room. Similarly my father had no room of his own till his death in 2009. It is clear that the contents of deed was not properly read over to my father while signing. Obviously my father could not complete the DELIVERY OF POSSESSION as he knew that the construction was done by me being the only son & only earning member of our joint family. How can I highlight these in my challenge papers, please?
ajay sethi
(Expert) 18 March 2013
you have to contact a local lawyer . he will do the needful . bascially get hold of your dad medical reports . that he was niot in position to make gift as he not in his senses during relevant period
Anirudh
(Expert) 18 March 2013
You have not so far stated whether the GIFT DEED was Registered or not.
DEBASHISH KARMAKAR
(Querist) 18 March 2013
Yes the Gift Deed is a registered one done in 2007 - there was no trace of such registered deed with registration office as due stamp duty was paid in 2011 after expiry of my father in 2009 - only after clearing this due payment we could trace out the deed. Sister also managed with our local ward councillor of Municipality to obtain mutation also although no title/partition/delivery possession were done. Is such gift deed really a valid one?
DEBASHISH KARMAKAR
(Querist) 18 March 2013
These are the tactics adopted by my sister as advised by her Expert Lawyer. Just to supress the facts of such purported gift deed from me (legal heir) and avoid leakage from registration office while searching, sister's expert lawyer suggested less payment of stamp duty so that Deed number does not get reflected to public. Is such deed is valid?
Anirudh
(Expert) 18 March 2013
Dear Mr. Debashish,
The Registration cannot happen unless the requisite Stamp Duty is paid.
The story that less stamp duty was paid etc. etc., does not appeal to my common sense and little bit of legal knowledge.
You better apply for encumbrance certificate for the property. You will come to know in whose name the property stands today.
DEBASHISH KARMAKAR
(Querist) 21 March 2013
Anirudh Sir,
As you said - ""The Registration cannot happen unless the requisite Stamp Duty is paid""
Will the court consider this registration (done in 2007) as void as deficit stamp duty was really paid later (in 2010) after my father's expiry in 2009. Beside this, no delivery of possession was done by my father till his death.
This is my last query, Sir. Please oblige with your opinion.
Anirudh
(Expert) 21 March 2013
You are confusing the issue.
Either the GIFT DEED was registered when your father was alive or it was not registered. WHAT IS THE REALITY PLEASE CONFIRM.
Let me come to the stamp duty aspect later.
DEBASHISH KARMAKAR
(Querist) 21 March 2013
Yes the Gift Deed was registered in 2007 when my father was alive - father expired in 2009 - deficit repeat deficit stamp duty was paid in 2010 & no delivery of possession was done by my father till his death.
Sudhir Kumar, Advocate
(Expert) 22 March 2013
better meet nearest lawyer with all papers.
It is not understood how deed could be registered n 2007 without stamp duty. It appears there was no proper registration.
Raj Kumar Makkad
(Expert) 22 March 2013
Registration may be done and the deed may be kept on hold which might have been got released after the death of the author by paying the deficit of the stamp duty.
In the given case, you are advised to file a civil suit for partition as if no will was executed by your father and thereafter let your sister come with original will which should be got challenged by you on all grounds available. Engage a local lawyer at the earliest.
You have a very good case in hand.
DEBASHISH KARMAKAR
(Querist) 10 June 2013
Respected Sirs,
As advised by all experts, I have filed civil suit for partition with injunction petition for locking the main enrance gate of our residential building (as per building plan) by donee of fraud gift deed barring right of access to me & my family members and all other emergency services like milk, newspaper, postman, etc. I have been, under this circumstances, using our narrow service/maintenance door for drainage, municipal water supply, night soil tank, etc on back side of building. I have also lodged GD with local police station on blocking of ingress/egress rights.
Please advise whether injunction will be imposed by court or not. My lawyer is suggesting another petition under Order 39 Rule (7) for appointing commission. Can Order 41 Rule (f) be applied? Would you please suggested ?? No hearing has taken place so far.
DEBASHISH KARMAKAR
(Querist) 12 June 2013
Makkad Sahab, I fervently seek your advice / guidance please.
