Gift deed
Querist :
Anonymous
(Querist) 21 January 2012
This query is : Resolved
A got the property mutated in her name after death of her mother B (original buyer)10 years back. And, B has not left any will at the time of her death. But being the only real daughter A got the property by producing death certificate of her mother B.
And as of now my mother A gifted me the property via Gift Deed 2 years back. I have two younger sisters one is married and other is about to get married in few months and i am the only Elder son. So i would like to know can they both claim any share in the above discussed property.
prabhakar singh
(Expert) 21 January 2012
They CAN NOT if the gift deed is registered one then you are sole owner from the date of gift.
Have you got mutation done in your favor or not.?
If not get the mutation done in your name on the basis of the gift deed made and registered in your favor by your mother.
Querist :
Anonymous
(Querist) 21 January 2012
Thanks for the reply sir.
I have got the mutation in my name but some people are saying that this is ancestral property and my sisters can claim this property since my mother has inherited this property from her mother but she is the only daughter. And there was no WILL at that time.
Kindly advice
Advocate. Arunagiri
(Expert) 21 January 2012
I differ with Mr.Singh.
Yes, your sisters are having equal rights. Because the property is a ancestor property, it is not a self acquired property.
Querist :
Anonymous
(Querist) 21 January 2012
Dear Arunagiri
If they can claim for shares. So what is the value of GIFT DEED ? Is it not the right gift , my mother has no power to gift ?
And is there any solutions so that they can not claim for shares ??
prabhakar singh
(Expert) 21 January 2012
Mr.Arunagiri!
You have every right to differ.
But I opined keeping following provision in my mind::::
HINDU SUCCESSION ACT, 1956
[Act No. 30 of Year 1956, dated 17th. June, 1956]
"14. Property of a female Hindu to be her absolute property
(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
prabhakar singh
(Expert) 21 January 2012
What you opine is coparcenary concept which can not be applied here as under old Hindu Law it consisted of males only,then in this case,it can not be applied,no matter at what time devolution on his mother took place, whether prior to or after enforcement of this Act.
prabhakar singh
(Expert) 21 January 2012
Dear Author !
It is not good and legal to bet but I confirm my opinion.
Querist :
Anonymous
(Querist) 21 January 2012
Dear Arunagiri
Whats your opinion ??
Please Revert Back.
Advocate. Arunagiri
(Expert) 21 January 2012
Dear Anonymous,
Still I stand on my opinion. As on the date of gift deed, there are other legal heirs available. How the ancestor property can be gifted to the son alone?
The gift deed is illegal. The daughters are having rights over the said property.
Querist :
Anonymous
(Querist) 21 January 2012
The gift deed has been given by mother out of love and affection according to her desire and the gift deed is duly registered then how can it be illegal. It is been gifted to me 2 years back. And mutation has been done.
Advocate. Arunagiri
(Expert) 21 January 2012
Many of the documents are getting registered in the SRO. They dont bother about the legality of the document, they are bothered about the stamp duty only.
I leave the matter to the third umpire.
Querist :
Anonymous
(Querist) 21 January 2012
MY MOTHER WAS THE SOLE OWNER OF THE PROPERTY BEFORE GIFTING IT TO ME. SO AS PER WHICH LAW YOU CAN SAY THAT THIS GIFT DEED IS ILLEGAL. IF SHE IS THE ONLY OWNER THEN WHY CANT SHE GIFT? WHAT DO YOU MEAN BY ILLEGAL GIFT DEED. DOES SHE HAS NO RIGHT TO GIFT IT ME ? IS THERE ANY LAW WHICH SAYS THAT ANCESTERAL PROPERTY CAN NOT BE GIFTED WHEN ITS OWNER IS ALIVE.
prabhakar singh
(Expert) 21 January 2012
Dear Mr.Arunagiri !
Kindly recheck the first post of the author.
The property was acquired by mother of mother of the author.
Then the difference of our conceptualization of COPARCENARY has no play at all in this case.I am not diluting my opinion earlier expressed.
But I want you not to cause unnecessary worry in the mind of the author just because we differ.
AUTHOR'S NANI WAS ABSOLUTE OWNER.She died. Her daughter,who is donor and mother of donee inherited from her mother and became absolute owner in her place and gifted it to her son.I fail to see What annoys you even if you differ about coparcenary concept with me where we may have difference,BUT WHY WITH THESE FACTS IN HAND YOU ARE CAUSING TO SUFFER THE AUTHOR IN AGONY.
prabhakar singh
(Expert) 21 January 2012
BE KIND ENOUGH TOME SIR!
I AM WAITING FOR YOUR REPLY.
Arvind Singh Chauhan
(Expert) 21 January 2012
I agree with explanation provided by Prabhakar Sir, of coparcenary property and go with his opinion.
prabhakar singh
(Expert) 21 January 2012
THANK YOU MR. ARVIND !
BUT HE MAY NEED THIRD UMPIRE,I AM DEPUTING HIM AS THIRD UMPIRE AND WANT HIS OPINION.
ANY OF US CAN GO WRONG.THEN IT IS NOT A MATTER OF ANY KIND OF COMPLEX BUT FAIRNESS OF SERVICE WE OATH TO PROVIDE MAY BE FREE OR OUT OF FEES.
Advocate. Arunagiri
(Expert) 21 January 2012
Mr.Singh,
It is not my intention to cause worry in the mind of the author. It is my opinion.
As you said, I may be wrong in my opinion, even then I dont feel that I am wrong.
That is why I stated
"I leave the matter to the third umpire."
Dear Author,
I will post a detailed reply after the reply of the third umpire if any, if needed.
Querist :
Anonymous
(Querist) 21 January 2012
my nani did not left any will and thts why it is treated as ancestral property. Bt my mother was the only daughter so i dont understand whts is the problem. Why is she can not gift it to me. And wht if there was will then this property wud hav become self acquired so there wud b no prb. I am really getting puzzled...why cant owner of the property gift it to her son even if it is inherited property. Cant she express her desires ? And according to mr arunagiri...he ssaid the gift deed is illegal.....how can he support his statement.
prabhakar singh
(Expert) 21 January 2012
THANK YOU SIR !
LET US TAKE AN OATH WE SHALL CONTEST THIS CASE IN COURT WHERE I SHALL WE FOR AUTHOR AND YOU SHALL BE FOR HIS SISTERS AND FACTS SHALL BE EXACTLY WHAT PLEADED HERE IN FIRST POST OF THE AUTHOR.
prabhakar singh
(Expert) 21 January 2012
DEAR author : Anonymous !
YOU NEED NOT WORRY.THE OPINION I HAVE EXPRESSED MAY BE WORTH ZERO PENNY HERE BUT IN PROFESSION IT COSTS ANY THING.I HAVE DECIDED TO RETIRE FROM MY PROFESSION ON 25TH AUUGUST2012 COMPLETING PAPER 60TY,THOUGH AT PRSENT I AM OVER IT ACCORDING TO MY HOROSCOPE.BUT I PROMISE TO CONDUCT YOUR CASE ANY WHERE ON MY COST PROVIDED MR.Arunagiri CONTEST THE CASE OF YOUR SISTERS.
Querist :
Anonymous
(Querist) 21 January 2012
And by the way who is third Umpire ??? Dear arunagiri please clear the matter...if you are right in your opinion then please give the supportive answers for your statements..i really need to get the right answer...as i have taken the permission to gift the property because it was not freehold...it was having lease hold rights.. So after the permission ..gift deed was executed and then ..after one year i converted property from leasehold to freehold.....and the conveyance deed is also in my name...
Querist :
Anonymous
(Querist) 21 January 2012
Thanks Mr Prabhakar ji..
Right now there is no case in for this issue.. as i am only taking opinion regarding this ..
And none of my sisters are claiming shares as of now... i have decided get no objection affidavit signed by them ...regarding the same issue..
If i still face the problem i will surely require your help..
Querist :
Anonymous
(Querist) 21 January 2012
Who is third umpire here... i want him to ask you for reply...in support of your statements.
Advocate. Arunagiri
(Expert) 21 January 2012
Mr.Singh,
I value your opinion. I admire your efforts in giving the opinion. In many cases I agree with your opinion.
In this case, I disagree, this doesnt mean, I am under estimating you.
I recollect a famous quote "no wise men think alike". I think it applies to this situation.
It seems that you are little bit emotional.
You have agreed to argue on the author side. You want me to appear on the sisters side. Even though I am ready, the sisters should agree to engage me as their counsel.
Querist :
Anonymous
(Querist) 21 January 2012
I am telling you all that there is no such case.. i am just collecting the facts. And i am here to get advice..
But i am feeling something else...and by the way Mr. Arunagiri..you have not replied me yet..
I am not looking for counsel here....why are you not understanding the agenda...
If you have some points please unleash them.. and let me know the facts.. nothing else.
Thanks again.
Querist :
Anonymous
(Querist) 21 January 2012
Dear prabhakar ji
Please let me know to be on safer side is it good to take the no objection affidavits from both sisters though i know gift deed has been executed and property is mutated in my name.
Please let me know..
Advocate. Arunagiri
(Expert) 21 January 2012
Dear Author,
I told you I will give my detailed opinion. Sure I will keep my words.
At the same time, when two of the experts, are forming a different opinion. I suggest you to take the opinion of another expert also. It is good for you.
I once again say, the final out come may be the case, that my opinion is wrong. But, as of now I stand on my opinion.
I will post a detailed reply after the detailed reply of the third umpire if any, if needed.
Querist :
Anonymous
(Querist) 21 January 2012
WHO IS THIRD UMPIRE ???
Advocate. Arunagiri
(Expert) 21 January 2012
I dont name any individual, it can be any expert, who give the opinion, in detail.
prabhakar singh
(Expert) 21 January 2012
HEY SITE YOU COME WITH THIRD EMPIRE WHO HAS BIASED OF NEPOTISM WITH SIR ARUNAGIRI BUT HE MUST NOT BE NO 10 OF To Day in hall of fame.
prabhakar singh
(Expert) 21 January 2012
Mean while Authour has asked me a question:
"Dear prabhakar ji
Please let me know to be on safer side is it good to take the no objection affidavits from both sisters though i know gift deed has been executed and property is mutated in my name.
Please let me know.."
MY ANSWER IS THAT THERE IS NOTHING BAD IN It AS DOING SO WILL SAVE YOU FROM SPECULATIVE LITIGATION THAT VIEWS LIKE MY BROTHER ARUNAGIRI MAY CREATE.....
Querist :
Anonymous
(Querist) 21 January 2012
I shall wait for any other expert to know Mr Arunagiri`s detailed opinion. Till then i will keep this query as open.
Querist :
Anonymous
(Querist) 21 January 2012
Dear prabhakar ji please let me know these
Affidavits should be notarised or regstered? I dont think it can be registered ?.. Is it possible ?
Querist :
Anonymous
(Querist) 21 January 2012
Dear Raj Kumar
Experts do not need room to enter.. :)
prabhakar singh
(Expert) 21 January 2012
notarized is more than sufficient dear author!
M/s. Y-not legal services
(Expert) 22 January 2012
can i be a third umpire? also am not in top 10..?
HINDU SUCCESSION ACT 1956:
In the case of females:
Under the Hindu Succession Act, 1956, females are granted ownership of all property acquired either before or after the signing of the Act, abolishing their “limited owner" status. However, it was not until the 2004 Amendment that daughters were allowed equal receipt of property as with sons. This invariably grants females property rights.
The property of a Hindu female dying inestate, or without a will, shall devolve in the following order:
upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband,
upon the heirs of the husband.
upon the heirs of the father, and
upon the heirs of the mother.
-tom-
M/s. Y-not legal services
(Expert) 22 January 2012
Certain exceptions:
If , and the heirs are both male and female, the female heir is not allowed to request partition until the male heir chooses to divide their respective shares. If this female heir is a daughter, she has the right to reside in the home if she is unmarried, divorced or widowed. --- After the Hindu Succession (Amendment) Act, 2005 Section 6 The difference between the female and male inheritor has been abolished - Now even female inheritor [daughter] can also claim partition of the ancestral property.
Any person who commits murder is disqualified from receiving any form of inheritance from the victim.
If a relative converts from Hinduism, he or she is still eligible for inheritance. The descendants of that converted relative, however, are disqualified from receiving inheritance from their Hindu relatives, unless they have converted back to Hinduism before the death of the relative.
-tom-
M/s. Y-not legal services
(Expert) 22 January 2012
Amendments:
The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary property, or a case in which two people inherit property equally between them, the daughter and son are subject to the same liabilities and disabilities.
"The amendment essentially furthers equal rights between males and females in the legal system"
-tom-
M/s. Y-not legal services
(Expert) 22 January 2012
MY CONCLUSION:
in case B made any arrangement like will or gift to A mean., the property can be treated as a self acquired property of A.
but A got the property as a only one legal heir of B. so its can not be treated as a self acquired property., it should be an ancestral property..
while being so., a co-sharer can not gift the whole property to one another co-sharer.
"so A's gift deed in favour of you is subject to challenge by your sisters".. also they can win..
-tom-
M/s. Y-not legal services
(Expert) 22 January 2012
even am requesting our ramachandran sir, to appear here for resolve this..
even other experts dont mistake me.. personally he is a good adviser to me reg. civil matters..
-tom-
Advocate. Arunagiri
(Expert) 22 January 2012
Now a third umpire had entered in the scene and had given a detailed opinion.
He is under the opinion that the gift deed is illegal and says that the sisters also having rights over the property.
Advocate. Arunagiri
(Expert) 22 January 2012
Mr.Makkad,
The room is expanded now and is open for entry.
Advocate. Arunagiri
(Expert) 22 January 2012
I produce a Supreme Court judgment, C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar
Equivalent citations: 1953 AIR 495, 1954 SCR 243 which analysis the property rights. There are some other case laws also, but, I feel this case law seems to be analysing the point in dispute.
1. Who can gift the property:- When the property is self acquired. The question of ancestor property does not arise. When the property is gifted by the person who self acquired the property. It is also not treated as an ancestor property. Property gifted by a father to his son could not become ancestral property in the hands of the son simply by reason of the fact that he got it from his father.
2. When a person has got the property by inheritance, "The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel." The father's grandsons, it is said, have a right by birth in the grand estate equally with the sons and consequently are entitled to shares on partition.
In this case the there are three categories of person:-
X = Grand mother of Z 1-3 and mother of Y. the original owner who acquired the property
Y = daughter of X who got the property as the only legal heir, not by way of gift.
Z1, Z2,Z3 = z1 is the son, z2, z3 are daughters of Y.
Point1:- whether the property is ancestor property or not as on the date of 2009 when the gift deed was registered by Y in favour of Z1.?
The property is an ancestor property, just because she got the property only by inheritance.
Point2= whether the Y is the competent person to give as gift?
Y is not the competent person to give as Gift. Just because it is an ancestor property.
Point 3= whether the Z2 and z3 are having rights over the property?
Y, z1, z2, z3 are having equal rights over the property as on 2009. The ownership over the grandmother’s property is equal among these 4 persons. So, Y can gift her share only to anybody. As the gift deed covers the entire property, the gift deed is void. There are chances to argue that Y’s share alone is valid by the gift deed. As the gift deed is illegal, the z1, z2 and z3 are having equal rights over the property.
V R SHROFF
(Expert) 22 January 2012
I love all of you three
Tom, Arun & Respected Shri Prabhakarji.
This matter is a Matter of Law, so no need to debate a lot.
Nor the matter Urgent, as nothing is going to happen in a year or two.
We have plenty of Time to Give our Judgement. When Court can take 5 years to Judge & Order, Let us take Few Days and Become a Judge, not Umpire. Umpire once declare Judgement, there is NO APPEAL.
When Judge declare his Judgment. * Order, Appeal Lies.
Let us use PM, as and when we differ!
AS THIS IS MATTER OF LAW, Other discussions are useless, Only Law will Prevail.
Pl Go thru Law & it's Citations , and then Reply.It will be crystal clear to all of you.
I do not like to be Umpire, of our own TEAM.
M/s. Y-not legal services
(Expert) 22 January 2012
thank you shroff sir.. citations can be give strength to law., can not be over rule the written law sir..
while law is clear, why we have to go behind citations..
am i wrong?
-tom-
prabhakar singh
(Expert) 22 January 2012
My dear TOM!
I appreciate you have started to labor the way any lawyer should do to start with but your too young to be deputed as umpire.
FIRST CONCEPTUALIZE before DRAWING CONCLUSIONS:
1.Woman had limited and restricted rights of inheritance in old hindu law but she was not barred from owning assets or properties.
2.Any property that is inherited from a degree above to us shall be called ANCESTRAL;but all ANCESTRAL property shall not be called or shall form a COPARCENARY.
3.The coparcenary concept with regard to ancestral property developed by Mitakshara School is a much narrower than its concept of Joint Hindu Family or ancestral.
4.The coparcenary can be thought of only that property which was ORIGINALLY acquired by a HINDU MALE governed by Mitakshara School.
5.Thus if a HINDU MALE governed by Mitakshara School INHERITS property which was ORIGINALLY acquired by HIS FATHER[ a HINDU MALE governed by Mitakshara School].
TAKE AN ILLUSTRATION TO UNDERSTAND COPARCENARY:
6.SAY 'A' is son and 'X' is father hence 'A'(male)inherits from whom father(NOT MOTHER)and such 'A'(male)has a SON'B',and a grand son 'C'.Then A,B,C ARE COPARECENERS. Then a son 'D'IS BORN TO 'C'.NOW EFFECT IS THAT 'D' BECOMES COPARCENER WITH A,B,C.SUBSEQUENTLY a son'E'IS BORN TO 'D'.'E' IS NOT A COPARCENER,for being 5th in descent from 'A'BUT SOON AFTER DEATH OF'A','E' SHALL BECOME COPARCENER as great grand son of 'B'......SO IT GOES.
TO APPLY CURRENT SECTION 6 OF HSA JUST REPLACE WORD 'SON' IN ILLUSTRATION BY WORD
'CHILD'BUT DO NOT REPLACE THE WORD 'FATHER'.
BUT YOU HAVE DONE SO.YOU HAVE REPLACED 'FATHER'BY 'MOTHER' AND APPLYING COPARCENARY WHICH WAS NEITHER IN EXISTENCE
IN OLD HINDU LAW NOR ANY SECTION OF HSA 1956 SPEAKS OF SUCH A COPARCENARY.
IN THE QUERY 'B'IS A WOMEN.SHE ACQUIRED A PROPERTY.'A' IS HER DAUGHTER WHO HAS INHERITED PROPERTY FROM HER MOTHER AS SOLE HEIR.THEN HERE CONCEPT OF COPARCENARY IS NOT APPLIED.'A'IS ABSOLUTE OWNER SHE IS NOT
OBLIGED UNDER ANY LAW TO HOLD IT FOR BENEFIT OF A COPARCENARY WITH HER SONS AND DAUGHTER.
ONE DO NEED TO APPLY SECTION 14 HSA TO UNDERSTAND THINGS PROPERLY.
THERE CAN NOT BE A COPARCENARY IF ORIGINAL OWNER IS A FEMALE.
IT SHOULD BE ALSO UNDERSTOOD BY YOU THAT SECTION 6 HSA IS SAYING GOOD BY TO LAW OF COPARCENARY EACH TIME A COPARCENER IS DYING
IT IS CLASS I SCHEDULE I HEIRS GIVEN IN THE ACT ARE INHERITING AS RECOGNIZED BY ENACTED LAW AND NOT OLD LAW.
prabhakar singh
(Expert) 22 January 2012
THE CASE LAW GIVEN HAS NO APPLICATION TO QUERY.
R.Ramachandran
(Expert) 22 January 2012
Dear Mr. Tom,
As usual, I have been watching this debate from the sidelines right from the inception.
I did not get into this query for the simple reason that it is an "Anonymous" query! There are many such queries which I had refrained from answering, even when the answers happened to be off the track, or blatantly wrong. It is the luck of those "Anonymous" querists!!
Now, that you ask me, so I feel obliged and I can get in.
The crux of the whole matter is whether the property which lady "B", got from her mother "A", is "ancestral property" in her hands or not?
If it was ancestral, naturally there will be other co-parceners and therefore she could not dispose of the property in which way without the consent of others.
Therefore, it is crucial to decide about the nature of the property at the threshold.
"Ancestral Property" is one of the species of the co-parcenary property; the other being the Joint Family Property.
According to Hindu Classical Law, only those properties which a Hindu "MALE" inherits from his father, grand father or great grand father would be "ancestral" or coparcenary property in his hands, with respect to his son, grandson and great grandson. Prior to 1956 (i.e. coming into force of Hindu Succession At, 1956) such property would be considered "ancestral" in his hands, even if one had inherited it after the death of his father.
HOWEVER, after coming into force of the HSA 1956, the son inheriting the property from his father, grandfather or great grandfather under the HSA 1956, would take it as his exclusive or absolue property, with NO RIGHT OF HIS MALE DESCENDANTS OVER IT. (There are other nuances to this legal proposition, in which case the property can get the "Ancestral" character, which is not required to be discussed here.)
In the instant case, the property has come to "B" from her mother "A", therefore, it does not even come anywhere near the requirement to qualify as a "ancestral property" and consequently, it is not a co-parcenary property.
In other words, the property in the hands of "B" is her personal property.
To dispose of the said property, in whichever way that she wants, she does not require any consent of anybody. Therefore, her daughters have no right whatsoever either to make a claim over the said property or to object in any manner whatsoever to her action of giving it away by way of GIFT to anybody (in this case her own son).
Advocate. Arunagiri
(Expert) 22 January 2012
This is a debate on law. Nothing personal. It seems I hurt Mr.Singh, by not accepting her version.
I dont want to be a center point for controversy. I leave this query at this point. But, I will be a spectator herein after.
R.Ramachandran
(Expert) 22 January 2012
Dear Tom,
In my above reply, I omitted to mention the following:
Though a maternal grandfather can be described as an ancestor, yet if a maternal grandson gets a property from his maternal grantfather, yet it will not be called "COPARCENARY" property. This is for the reason that only those properties inherited by a MALE from his ancestor who is in his own LINE of ascendency.
M/s. Y-not legal services
(Expert) 22 January 2012
thank you very much ram sir..
prabhakaar sir., i also dont want to be an umpire.. thats for just fun.. and you have to correct your juniors while we doing mistakes.,
arunagiri sir.. dont worry.. am also sailing in the same boat with you..
-tom-
prabhakar singh
(Expert) 22 January 2012
Dear Mr.ARUNAGIRI!
I SHALL BE ANGRY ON YOU IF YOU SHALL HAVE A FEELING THAT YOU HURT ME.
Devajyoti Barman
(Expert) 22 January 2012
OMG,so many posts fro this single query.
Querist :
Anonymous
(Querist) 22 January 2012
All i know is my mother is the only legal heir of her mother`s property and thats why mutation has been done in her favour after my nani`s death 10 years back by producing death certificate as she is the only daughter. So i assume she has the exclusive right to gift this property to her son.
Querist :
Anonymous
(Querist) 22 January 2012
And i really do not understand how people can name this property as ancesteral. My nana ji died earlier to my nani and this property was originally purchased on my nani`s name and my mother is the only daughter. So according to me my mother had exclusive rights to gift this property to me(Son)which she did.
