Gift from mother
Querist :
Anonymous
(Querist) 05 March 2018
This query is : Resolved
Dear Sir, we are two brothers and one sister, myself(Married) in middle, elder brother(Married) and younger sister(Married), my father died in year 2004. We (my family) are residing with my mother at a flat which was owned in joint name of my father and mother. After death of my father,mother is deemed to be the owner of the flat. My mother wants to gift the flat to me. My elder brother is staying in a rented house since last 14 years. My sister is staying with her in laws and she is happy.
Sir my question is that , Can my elder brother and sister claim Thier respective share in the flat after the GIFT DEED is registered in my name. Can I stop them to enter in my house after gift deed registration.
Vijay Raj Mahajan
(Expert) 05 March 2018
The joint property of both parents after the death of the father his 50% share devolved to all his legal heirs which includes his widow and all children each getting one share each if he died without making any Will. The remaining 50% of the property remain with the mother. Now the mother was never the owner of the entire property and so cannot make any Gift Deed for the entire property in favor of one son henceforth the remaining children who already had share in the property by virtue of their inheritance have every right to claim their share in the property now and even after death of the mother. Mother can make Will in favor of one or more of her children for only her share in the property not for entire property.
Ms.Usha Kapoor
(Expert) 05 March 2018
According to law of Joint Ownership if one of the Joint owner dies without leaving a will or Co ownership his 50% share will devolve on his survivor or or other coowner and not to his legal heirs., so your mother is within her rights to gift away that property as surviving coowner in favor of you as an absolute owner.
Vijay Raj Mahajan
(Expert) 05 March 2018
There is no law of the land where the joint ownership in one property on the death of one of the partner the other partner will not automatically become sole owner of the property. By stating wrong law like this will be misguiding the person. The right of inheritance of the heirs of one of the co-partner of the joint property cannot be ignored. The interest and share of one of the co-owner can be transferred by anyone one any time during his lifetime u/s 44 of the Transfer of Property Act or even after his death otherwise his heir shall get the interest or share in the property by virtue of law of succession.
Guest
(Expert) 05 March 2018
If no settlement deed has yet been made, your brother and sister being the rightful claimants as legal heirs of your deceased father, you can't ignore their share out of the share of your deceased father.
Querist :
Anonymous
(Querist) 05 March 2018
My elder brother has undergone craniotomy surgery due to brain hemorrhage on 25/01/2018 due to a road accident and he is hospitalized till date and he is in comma state.....his wife left him on 01/03/2018 and his son also left him from the hospital on 03/03/2018. Only home care is required for my brother. They are demanding that after discharge from hospital....my brother should be cared and brought to my residence and not to Thier rented house. Can I bring my brother to my residence and disallow his wife and her son to enter my residence after Gift Deed registration in my name.
Ms.Usha Kapoor
(Expert) 05 March 2018
My Dear Mr.Mahajan,
Please read the following information regarding law of Joint ownership also between wife and husband and its consequences
All You Need To Know About Co-Ownership Of Property & Your Rights
Shaveta Dua August 26, 2016
All You Need To Know About Co-Ownership Of Property & Your Rights
(Dreamstime)
Nakul and Anjali were a happily married couple till they decided to file a divorce. As Nakul insisted on dividing all the things, including their house, which was owned jointly by them, he hired a lawyer to handle his claim. The lawyer, after explaining all the financial nitty-gritty to her, managed to convince 'ignorant' Anjali that she had no stake in the house.
So, what is the co-ownership of a property?
Co-ownership, or joint ownership, is when two or more persons hold title to the same property.
Types of co-ownerships
Tenants-in-common: When two or more people hold the title of a property but their share is not specifically mentioned, it is known as 'tenancy-in-common'. All the owners can use the entire property and every co-owner has an equal share in the property. With the death of one of the joint owners, the interest in the property does not pass to the other co-owners. The property goes to the person named in the will of the deceased. He then becomes a tenant-in-common with the surviving co-owners.
Joint tenancy: It is a form of co-ownership where the property is owned by two or more persons in equal shares. This type of tenancy provides rights to ownership of the property for the co-owners who outlive other co-owners. Unlike tenants-in-common where one joint tenant dies, his interest automatically passes on to the other surviving joint tenant(s). There are four legal requirements that help create a joint tenancy:
Unity of time, Unity of possession, and Unity of title, which means that the co-owners have to take the same title at the same time, same deed and with equal interests.
Four, tenancy by entirety, which is a special form of joint tenancy where the joint tenants are man and the wife — with each jointly owning the property in 50:50 ratio. Neither spouse can sell the property without the consent of the other party. Apart from the four aspects mentioned in joint tenancy, another aspect is equally critical.
It's the marriage, which can be ended only through divorce or death. However, such a termination will result in the ownership being converted into tenancy-in-common.In such a scenario, it is important to brush up the laws involving the transfer of property so as to be clear about one's rights.
In such a scenario, it is important to brush up the laws involving the transfer of property so as to be clear about one's rights.
Transfer of Property Act
Section 44 of the Transfer of Property Act 1882 talks about the transfer by a co-owner and it also deals with the rights of a transferee. According to the Act, every joint or co-owner has a proprietary right of the entire property. In a nutshell, any sale has to be done with the consent of all co-owners concerned.
On the contrary, if there are specific conditions in the agreement that give co-owners exclusive rights to certain parts/portions of the property, a joint owner can sell his portion to whom he chooses.
What are the rights of a co-owner?
A co-owner is entitled to three essentials of ownership. This includes the right to possession, the right to use and the right to dispose of his share of the property if it is clearly stated in the deed.
Therefore, if a co-owner is deprived of her property, she has a right to be put back in possession. For instance, in Anjali's case, she can rightfully claim her share in the property.
Is co-ownership better?
Yes, if you are a married couple. Co-owning a house with your spouse has many tax benefits, too. In case of a joint ownership, the husband as well as the wife individually will be able to claim deductions for up to Rs 1.5 lakh for interest and up to Rs 1 lakh on principal under the Income Tax Act. It also enables easy transfer of property to your children.
property Income Tax Act makaaniq Legal Transfer of Pro...
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Guest
(Expert) 05 March 2018
In what way Ms. Usha Kapoor's copied & pasted article of Makaan.com is concerned in the context of the query on gift by mother?
Probably, she wants to teach with the borrowed concept on the property law to an experienced & practising lawyer, like Mr. Vijay Raj Mahajan.
R.Ramachandran
(Expert) 05 March 2018
@Ms.Usha Kapoor: You say "ACCORDING TO LAW OF JOINT OWNERSHIPif one of the Joint owner dies without leaving a Will or Coownership his 50% share will devolve on his survivor or other co-owner and not to his legal heirs."
Please be specific as to which Law says so?
And even after being pointed out by Mr. Vijay Raj Mahajan, instead of reviewing your incorrect answer, you are dishing out some unwarranted and unconnected write ups, probably wrongly thinking that those write-ups support your view. If you are not aware, better do not spread here your confusion to others!
Guest
(Expert) 05 March 2018
Mr. Ramachandran,
The fun of the post of Ms. Usha Kapoor is that she has copied and pasted even the disclaimer part of the website in the last two paragraphs of her post., as if she is making publicity of the website of Makaan.com, where the writer has very clearly stated the article to be not an legal advice.
Ms.Usha Kapoor
(Expert) 05 March 2018
Dear Lawyers,
I still stick to my view.
As per law of Joint ownership each joint owner owns the property equally along with other Joint or co owners. In the present case also even according to Mahajan both deceased husband and his wife own each 50% of property,i.e 50%:50 each. So both the deceased husband and the wife are owning the property Jointly and equally. So Law of Jt ownership by survivorship applies.
property distribution upon death or separation: When one spouse passes away, his or her separate property is distributed according to his or her will, or according to probate, without a will. The distribution of the marital property depends on how the spouses share ownership. If they own property in "joint tenancy with the right of survivorship" or "tenancy by the entirety", the property goes to the surviving spouse. This right is independent of what the deceased spouse's will says. However, if the property was owned as "tenancy in common", then the property can go to someone other than the surviving spouse, per the deceased spouse's will. Not all property has a title or deed. In this case, generally, whoever paid for the property or received it as a gift owns it.
Vijay Raj Mahajan
(Expert) 05 March 2018
If joint ownership by survivorship applies than if there is a case where two persons not related to buy a property jointly having equal share and after the death of one of them the other person will become the sole owner of the property and if heirs of the deceased person ask for their relatives' share in the property the surviving person will kick them out by saying now he's the sole owner and they have no interest or share in the property.
Lets take another example two person in partnership start a business each having 50-50 share in all aspects and after the death of one of them the surviving partner becomes sole owner of the business and when the heirs of the deceased partner ask for their share he'll tell them to get out as now he's the sole owner.
What a legal philosophy developed by this lady, Ms Usha Kapoor.
R.Ramachandran
(Expert) 05 March 2018
With half baked and borrowed knowledge, she is trying to masquerade as an Expert here! Instead of correcting her mistakes, she exhibits total arrogance and says that she will stick to her views, however horrible and off the mark they are!!
Please see the cut and paste jobs that she does here - unmindful of whether or not such cut and paste work suits the query, she plasters them here and claims to have provided a solution to the querist!!!
I pity the querist.
Guest
(Expert) 05 March 2018
Very often she had been found misguiding the querists with some vague and misleading views of her. Whenever pointed out, she never reconciled to check where she was wrong. So does she here also when she says, "I still stick to my views."
Ms.Usha Kapoor
(Expert) 05 March 2018
We have got to examine title deeds of the property. If they ARE IN jT NAMES OF WIFE AND HUSBAND AND JOINT OWNERSHIP with a clause of SURVIVORSHIP RIGHTS THE ENTIRE FLAT PROPERTY GOES TO THE WIDOW OF DECEASED JT OWNER. If NOT THE OWNERSHIP WILL BE TREATED AS TENANTS IN COMMON AND THE PROPERTY OF THE DECEASED jt OWNER GOES TO HIS LEGAL HEIRS.including his widow.
Dr J C Vashista
(Expert) 06 March 2018
@ Author,
If you are seeking obligation of experts FREE OF COST you will have to disclose your identity as per rules of this platform, NO reply for anonymous author.
@ Jigyasu,
She is in the habit of making such copy paste work and pretending an expert which is termed as "impersonating", nothing new.
Regards
Guest
(Expert) 06 March 2018
@ Dr. J.C.Vashista,
Thanks for endorsing my views.
