• Inheritance of property

Family of 5. Father Mother Son Daughter 1 Daughter 2. They have a house in the name of Mother. Father has died. There was a will whereby the house will be shared equally by all 3 children. But the son has compelled the mother to execute a gift deed thereby forcing her to pass on the property to the son. The will has been destroyed. Now can the daughters get share of their father's property. Please help.
Asked 3 years ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1. Mother was the absolute owner of the property,

2. The registered Gift Deed superceeded the Will which has now been destroyed,

3. If the mother has been compelled by the son to execute and register the said Gift Deed, then she is the parson who should file police complaint against her son and/or file a petition  for declaration that the said Gift Deed is illegal,

4. Otherwise, the Gift Deed will be treated as a valid deed of conveyance.
Krishna Kishore Ganguly
Advocate, Kolkata
15135 Answers
366 Consultations

5.0 on 5.0

1. The destruction of Will has made the job the daughters mighty difficult.
2. In any case, if the mother is ready and willing then she can file a suit for setting aside the gift deed on the ground of coercion and fraud.
3. once that is done the mother can either transfer the property to her daughters and leave this for inheritance by his son and daughters in equal share on her death.
Devajyoti Barman
Advocate, Kolkata
9387 Answers
114 Consultations

5.0 on 5.0

1. Who has executed the Will? 

2. Was it executed by father or mother? You are not clear in this regard,

3. However, if the Will, which is not registered, is not available, the beneficiaries can not claim their share on the property,

4. Moreover, if the title holder of the property affirms that she has executed and registered the gift deed without being coerced, then the matter gets well settled in favour of her son.
Krishna Kishore Ganguly
Advocate, Kolkata
15135 Answers
366 Consultations

5.0 on 5.0

Unless mother files a suit as advised and get the gift dee set aside, the daughters can do nothing .
Devajyoti Barman
Advocate, Kolkata
9387 Answers
114 Consultations

5.0 on 5.0

1) is the will registered? 

2) if so certified copy of will can be obtained from sub registrar office . 

3)in any case will would have taken effect on demise of mother . 

4) during lifetime mother can execute gift deed wherein she can gift property to her son . 

5) if mother was forced to execute gift deed she will have to move court to set aside gift deed
Ajay Sethi
Advocate, Mumbai
35202 Answers
1954 Consultations

5.0 on 5.0

even if will was in existence once gift deed is executed by mother in favour of son will has no value . 
the reason being mother as absolute owner of property has already transferred property in name of son by gift deed .
Ajay Sethi
Advocate, Mumbai
35202 Answers
1954 Consultations

5.0 on 5.0

1. The gift deed, being executed later in time, has superseded the will made by the mother. So in case of a conflict between the will and the gift deed it is the latter which will prevail.

2. The only legal recourse available to the mother is to file a lawsuit for setting aside the gift deed as it has been vitiated by duress, being executed by mother under force from her son. If the court holds the gift deed to be illegal the earlier will executed by mother will be revived. The gift deed will remain legal and valid for all practical reasons if it is not challenged in the court.

3. If the mother is not willing to challenge the gift deed then the sisters can do so, albeit the challenge will be an exercise in futility unless and until the mother countenances the stand of the daughters.
Ashish Davessar
Advocate, Jaipur
21327 Answers
572 Consultations

5.0 on 5.0

1. Was the will probated?

2. The certified copy of the will can be obtained from the office of local registrar. However, at this stage the will is a document which has no legal force as it has been superseded by the gift deed.

3. If the mother does not challenge the gift deed or countenances the claim of the sisters if they challenge the gift deed, the son will succeed in proving the gift deed to be legal.
Ashish Davessar
Advocate, Jaipur
21327 Answers
572 Consultations

5.0 on 5.0

Hi, it the property is an self acquired property then mother can dispose of the property to any body but here you don't know whether will is existing or not if the mother has execute a   gift deed to his son daughters have no right to claim the property and provided daughter has to challenge the gift in the court that gift has been executed by coercion and undue influence.
Pradeep Bharathipura
Advocate, Bangalore
4371 Answers
178 Consultations

4.3 on 5.0

file a case for probate and make your brother a party. court shall summon your brother to show will and if he refuse to do so an adverse presumption shall be drawn by the court. if he  destroyed that will then your mother has right to transfer all properties in to her son and daughters. because after September 2005 daughter is also included in coparcenry and they have same right in ancestral property as the sons. your mother has life interest and she can't give all properties in favour of son without your consent.
Shivendra Pratap Singh
Advocate, Lucknow
4240 Answers
60 Consultations

4.9 on 5.0

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