Gift settlement deed
Joseph
(Querist) 17 January 2012
This query is : Resolved
Hi All,
I have a query on Gift Deed settlement. I will describe the current scenario my wife is in. We have 2 daughters. My wife made a Gift deed settlement to one of my daughters 2 years ago. But there after the settlement, daughter showed her real face and made many problems. So, my wife was frustrated by their activities and cancelled the Gift deed and planned to sell the house. Now, my daughter has filed a suit OS.No against my wife. Can't we sell the house at this position? Or if, I can make another Gift settlement deed to other daughter? If that's the case, my latest Gift settlement be valid and the first gift settlement deed becomes void?
I need experts views on this. Thanks in advance.
Deepak Nair
(Expert) 17 January 2012
A gift deed once registered cannot be cancelled.
If your first gift deed was not registered, then you can register your second gift deed to make it valid and effective.
If the first deed was regsitered, then your daughter is well entitled for the property gifted by your wife.
Joseph
(Querist) 17 January 2012
Thanks a lot Mr. Deepak. The first deed was registered. Is there any other way to make the first deed as void?
A V Vishal
(Expert) 17 January 2012
A gift deed cannot be cancelled unilaterally unless it is a onerous/conditional gift. Even if you plan to gift it at this stage the fresh gift will not supersede the old one. Selling the property while there is ongoing litigation is not advisable since it is not clear what your daughter has sought in the petition and if the court has asked to maintain status quo on the property, further, in case the case turns against you you will end up in further troubles and litigations.
Joseph
(Querist) 17 January 2012
Thanks a lot for your reply Mr. Vishal. Is there any way to solve this issue?
A V Vishal
(Expert) 17 January 2012
You will have to wait until the court decides, further without going through the relevant case papers it will be premature to advise anything in this regard.
Joseph
(Querist) 17 January 2012
Sorry to trouble you Mr. Vishal. Could you please clarify a query? Since my daughter has filed a suit, does Court has authority to cancel the gift deed, if the reasons from my wife is genuine? If yes, how long the court procedure would take place?
A V Vishal
(Expert) 17 January 2012
Yes the court can cancel the gift deed provided you prove that your wife was under threat, coercion or intimidation to execute the gift deed, thereafter the court will order separate criminal action against your daughter if proved. However, in civil cases there can be no time frame for delivery of justice your case may be dragged on for years.
ajay sethi
(Expert) 17 January 2012
1)are you a senior citzen? under provisions of senior citzens act th tribunal has powers to cancel the gift deed if children are not looking after the parents
2)make an application for maintenace The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct. (3) On receipt of an application for maintenance under sub- section (1) after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance. (4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:
Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing"
3)section 23. Transfer of property to be void in certain circumstances : (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organization referred to in Explanation to sub-
Joseph
(Querist) 17 January 2012
Thanks for your timely response Mr.Vishal. What will happen if my wife passes away during the case? She is already sick. In this scenario, will she be able to give power to my other daughter to take care of this case?
Joseph
(Querist) 17 January 2012
Appreciate your detailed explanation Mr.Ajay.. Thank you.
A V Vishal
(Expert) 17 January 2012
Mr Joseph, you can step into her shoes on her death as legal heir but in your own interests let her execute a will and register it. Further she cannot give a POA to your other daughter since the POA dies with the executant herself.
Raj Kumar Makkad
(Expert) 17 January 2012
The reply put forth by sethi is not relevant to the question. As in this case, mother is not demanding the maintenance from her daughter rather is facing a civil suit in her hands on certain different grounds.
I do appreciate the efforts of vishal in resolving the query.
prabhakar singh
(Expert) 17 January 2012
At any rate of the matter the gift deed can not be set aside or cancelled in daughter's suit unless mother donor herself files a counter claim or files a fresh suit with demand of relief of cancellation of the gift
on the ground that consent to will was obtained by either misrepresentation, fraud or undue influence.
Things so far have been not gone properly and daughter is smart in her moves.
