• Gifted property

A aged grandfather of 85 gifted his ancestors entire property to his daughter in law and grandson.Leaving another grandson and daughter in law(sons died/undived property)the deed marked by grandfather while gifting the property is being taken care of during his old times .But  can be proved false is court.The given land is registered.So is their any may in our constitution to provide Justic to the other grand son and daughter in law. Registered in 2009.MUSLIM FAMILY
Asked 2 years ago in Property Law from Guwahati, Assam
1) unlike Hindu law, there is no provision for any ancestral or joint­ family   property.   Accordingly,   under   Muslim   law   of   inheritance,   no  distinction has been made between self­acquired and ancestral property.  All properties, whether acquired by a Muslim himself or inherited by his  ancestors, are regarded as an individual property and, may be inherited  by his legal heirs.


2)is the grand father mentally sound? 

3) if gift deed has been executed on account of fruad or coercion grandson can challenge the gift made by grandfather . 

4)grand son can move court for setting aside gift deed and court may grant injunction restraining creation of third party rights pending hearing and final disposal of suit
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
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Essentials of a valid gift under Muhammadan Law

1. The Donor must be Competent:
The donor must have a capacity to make a gift, i.e., he must be a major and of a sound mind. He may dispose of the whole of his property by gift in favour of any person including a stranger, even to the entire exclusion of his heirs. There are no limits on the power of the donor to dispose of his property, as there are on the testamentary .capacity of a testator. The donor’s intention must not be dishonest, as where a gift is made with intent to defraud creditors.

2. Declaration and Acceptance:
There must be a declaration of the gift by the donor and an acceptance of the gift, express or implied, by or on behalf of the donee.

3. Delivery of Possession:
It is essential to the validity of a gift that it should be accompanied by delivery of possession, depending, of course, on the nature of the property gifted. The taking of possession of the subject-matter of the gift by the donee, either actually or constructively, is necessary to complete a gift.

Registration of the deed of a gift does not cure the want of delivery of possession. Neither writing nor registration is necessary to validate a gift either of movable or immovable property. Possession is not delivered then the gift is incomplete, and therefore, void.

In your case other grandson's  claim over the property could not  success in the eye of law. A gift transfers Doner’s ownership then there in Donee favour
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
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if you were able to prove that your grand father was not mentally fit at time of execution of gift deed then you can move court for setting aside gift deed
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
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1. The gift deed once executed and registered can not be cancelled even by the donor unilaterally.
2. However the court on application of the party aggrieved can set it aside if it is proved that the gift deed was the result of fraud, coercion , misrepresentation of material fact and incapacity of the donor to enter into contract.
3. Since in your case the grand father was mentally unfit, on proof of this fact the court can set aside the gift .
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
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1. There is no ancestral property under the Muslim Law. A property whether acquired or inherited is regarded as the separate property.

2. The gift deed executed by the grand father in favour of his daughter in law and grandson can be challenged in the court by the other grand son only on the ground of coercion or fraud. There is no other ground on which the court may set aside the gift as illegal.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
1. Old age is not synonymous with 'mental unfitness' under the law. Mere fact that the grand father was too old at the time of the gift deed does not lead to a presumption that he was also mentally unsound.

2. The court will require proof, ocular or documentary, of the mental unsoundness of the grand father.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
A. In Muslim Law, there is no concept of ancestral property. 

B. Once acquired the property by following legal manner that would consider as an individual or self acquired property. Hence, your grandfather has an absolute right to alienate the property. Therefore, gift deed's transaction will be valid in the eyes of law.

C. In Muslim Law, oral gift can be executed, therefore gift deed need not be registered. However, your grandfather  must be  mentally competent or fitness at the time of execution of the Gift deed.

D. When Gift May Be Suspended Or Revoked
Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the following are those conditions-
(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the donor's will;
(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift. Section 126 is
controlled by sec. 10. As such, a clause in the gift deed totally prohibiting alienation is void in view of the provisions contained in
sec. 10. A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
1. As per Muslim Law, there is no distinction between ancestral and self acquired property and both are treated as individual property,

2. If your grand father was cin sound mental health at the time of executing and registering the property, then the said gift is perfectly valid,

3. At the age of 85 years, a person is expected to be not in proper mental state to execute a gift deed,

4. You can challenge the said gift deed on alleging coercion or inability of your grandfather to execute the said deed.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. If you can lay hand on any medical certificate/prescription showing that he had medical problem which proves his mentally instability, then you can produce the said documents as evidence to challange the said gift deed,


2. Engage an experience lawyer having expertise in this field.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
The gift deed once executed and registered can not be cancelled even by the donor unilaterally.Your grandfather has an absolute right to alienate the property. Therefore, gift deed's transaction will be valid. Mentally competent or fit at the time of execution of the Gift deed is important. If you can prove the execution of Gift deed is based on fraud, undue influence or misrepresentation and the executor is not mentally fit you can win for canceling the deed in court. The gift deed executed by the grand father in favour of his daughter in law and grandson can be challenged in the court by the other grand son only on the ground of coercion or fraud. There is no other ground on which the court may set aside the gift as illegal.
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
Then challenge the matter before the concern court,but  grand father had right to transfer  or alienate.
half of  the share  to any one.
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
1) if grand father was not absolute owner of land gift deed can be challenged on said ground . grand father could not gift more property than he owned at that time 

2) if gift deed has been executed duly stamped and registered copy would be available in sub registrar office
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. If your grandfather has executed and registered the Gift Deed gifting the entire property which was jointly owned by him with his brother, then you can challenge the said gift deed,

2. Hence, the other grandsons should file a partition suit immediately claiming their shares of the property.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. If the grand father was not the absolute owner of the land at the time of the gift deed then the gift deed can be challenged in the court on the ground that he was not competent to make the gift deed. 

2. If the gift deed is struck down as illegal by the court the property would devolve according to the law of succession.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
if your grand father is not the owner of that gifted property then gift is void and have no force to execute. registration of that property is also void. you should file civil suit for cancellation of gift deed and partition of property.
there is no concept of joint family so there is no ancestral property in Muslim law. on the death of a Muslim his property became subject to inheritance. in his life time a Muslim has power to make hiba of his owned property.
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
In order to complete the hiba there are three requirements of the law which are as under:

(1) The declaration of hiba by the donner in respect of some property of his own, 
(2) Delivery of the property to the transferee/donee, 
(3) Acceptance of the transferee/donee by receiving the property.
for the validity of a gift, donor should divest himself completely of all ownership and dominion over the subject of the gift.

donor can't donate any property which is in the ownership of a person other than donor. [ Mahboob Sahab vs Syed Ismail & Ors , 1995 AIR 1205 ]
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
1) you cant win case on moral grounds 

2) the fact that your grand father filed case against your mother for control of your father FD and case was dismissed is immaterial 

3) one of essential elements of valid gift is that donee must be placed in possession of property .  If there is no acceptance, the gift is not complete. ... This can be accomplished by physically delivering the gift or by symbolic delivery. .
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1) Under Muslim Personal Law, immovable property can be transferred provided that there is an offer made by a donor, which is accepted by the recipient in presence of witnesses and the property be handed over to the recipient.

2) Muslim personal law guarantees transfer of property by means of Hiba and this has been upheld in various courts of law

3) if gift is not accepted no valid gift has taken place 

4) Chapter XI of the Mulla?s Principles of Mahomedan Law, edited by Shri M. Hidayatullah, former Chief Justice and, Vice- President of India, deals with the gift. Sections 138 and 147 of the said Mahomedan Law are relevant  "138. Hiba or gift. - A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter" " 147. Writing not necessary.-Writing is not essential to the validity of a gift either of movable  or immovable property
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
you can file suit for setting aside oral gift of immovable property . in said suit you can allege that gift s not valid as it was not accepted by donee nor possession delivered .if there are no witnesses to HIBA it would be difficult for donee to prove that valid gift was made
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1) Section 127 of the Transfer of Property Act clearly recognised the competence of a minor to accept a gift.

2) The Supreme court has held that  "when a gift is made to a child, there is a presumption of its acceptance because expressing acceptance in his case is not possible and only an implied acceptance can be expected".
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. Cases are founded on the breach of law, not morals. Morality is not enforceable through the court.

2. The case which your grand mother filed and lost against your mother has no co-relation to the gift deed executed by your grand father.

3. If the donee did not get the possession of the property the gift is not valid. Putting donee into possession of the property is an essential requirement of a gift deed.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
minor is competent to accept gift. there is no moral law applicable in court of law. if gift is made and accepted by donee then in certain circumstances it is irrevocable. you should collect some evidence regarding possession of your grand father on the property gifted. person can't make gift if he has no right over it. on the death of your father his property should had been vested in you. because on the death of father his property devolve on his widow and children. his father has no right over it. if your father had gifted those properties or any part of that property then gift is void. you should challenge gift deed on the ground that you have vested interest in and it could not be gifted by your grand father.
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
1. There is nothing called moral law. If you want to say about moral ground, there is nothing on that ground to give you relief,

2. Ther gifted property shall have to be delivered and the donee should accept the gift,

3. If the donee has not accepted the gift, then the said gift deed is incomplete hence can be challenged.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. As per Muslim Personal Law, a property can be gifted verbally also,

2. Thwe gift of the said property can also be accepted orally,

3. In both the above cases, there shall have to be witnesses.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. You can challenge the oral gift for its non acceptance and not taking possession of,

2. If there is no witness to the said gift, then the gift is invalid and can be easily challenged.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. The donee's being minor tilts the case against you,

2. If the donee is a minor, it is presumed that he has accepted the gift,

3. You can challenge the said gift on the ground that there was no witness and the gifted property has not been taken possession of.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0

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