Sir I a am muslim and my father has adopted me when I was of 7 days from his paternal cousin brother . Now he wants to hiba me his share of property which is undivided between his younger brother . But according to muslim law undivided property(mushaa) cannot be given in gift because delivery of possession will not take place because my uncle is not ready for partition and hiba will void My father don't want to go to court for filling partion deed because he is too old If my father give me his share of property by sell deed then according to section 4 of 1983 dweling house stranger cannot take the possession. I m living in the same house from my childhood so I will be stranger to them . This section 4 of 1983 is applicable to land also on which nothing is constructed. Please reply with suitable advice what should I do to get father share of property
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If my father files a partition deed and before the partition have taken place because it's take lots of time in such cases he gift me all his property by hiba and in between the case he dies then hiba will be completed. If have read on internet if delivery of possession has not taken place but donor was doing what he can do by law and dies in between hiba will be valid
1) You had raised this query earlier too
2) I had advised you that father can sell his share in property without consent of other co owners
3) section 44 of transfer of property act provides that co owner can sell his share without consent of other co owners
4) you can file suit for partition for division of property by metes and bounds
Your father can file suit for partition for division of property by metes and bounds
2) partition suit take 15 years to be disposed of
3) your father can seek injunction restraining his brother from creating third party rights on the property
4) in case Hafiz Abdul Basit (Supra), relevant portion is reproduced as under:
"While delivery of possession is an essential condition for the validity of the gift. It is not necessary that in every case there should be a physical delivery of possession. Possession, the delivery of which would complete a gift, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift. (Mohd. Baksh Vs. Hosaini bibi, ILR 15 Cal 684). The relinquishment of control is thus necessary to complete the gift. Constructive possession of the subject of the gift is, therefore, sufficient. Delivery of possession can be made in such a manner as the subject of the gift is susceptible of (Sadik hussain Dr Syed A. R. Zaidi Vs Mrs. Naseem Akbar Khan Vs. Hashim Ali Khan, 43 Ind App 212 = (AIR 1916 PC 27).
First of all you have not confirmed that how did he adopt you, whether by a registered adoption deed or orally
If no other remedy is available then a partition suit alone can fetch you relief.
