• Settlement of self-owned property and cancellation on desertion

A Mother 
B son 
C grandson

 A had acquired a house property with own funds( from salary income) and was forced to give a settlement  in the name of B and C without life interest. A gave settlement with 75 % right to B and 25% to C and reatined life intrest in one fourth portion of the bulit  up area in the ground floor.  B and C  could not change the name in property tax as A  had life interest.  B and C were colelcting rent from tenants. B and C also took away the  A 's pension on some context.   B and C were harassing and trying to evict A who is 77 years from the house.  A  cancelled the settlement at the registrar's office.  B and C came to know it and got temporary injunction and claim that A has no right in the property and harassing her to  transfer the property.  Is the cancellation of setlement by A  valid ?    Can  A  write a will on the property (when the case  by B and C is in court) and  get it registered?   Can A get  100 % porperty rights ? Will she get it under Maintenance of senoir citizens and welfare  Act 2007?  Does a will supercede settlement given?
Asked 3 years ago in Family Law from Chennai, Tamil Nadu
Religion: Hindu
1. Deed f settlement if acted upon and duly registered then it can not be unilaterally cancelled by the settlor.
2. The Settlor however could have filed a suit in civil court to set it aside on several grounds including that it was the result of fraud, coercion and force exercised on her.
3. Settlor can still file such case and claim for injunction against his forceful eviction or for her peaceful possession.
4. Will is no more possible unless and until settlement deed is set aside.
5. A can have protection under Maintenance of senior citizens and welfare  Act 2007 from such torturous acts.
Devajyoti Barman
Advocate, Kolkata
12818 Answers
166 Consultations

5.0 on 5.0

Any condition was imposed in settlement deed? 
If any condition is imposed and  If  B and C are did not act according to the condition, and the possession is not taken over by the Beneficiary or handed over by the Settler and the donor felt that the purpose for which the settlement deed executed was not fulfilled, he can cancelled the settlement deed through court.But the Settled law is ,

Settlement deed is not a "conditional gift". Once the settlement deed has been executed and acted upon, it cannot be revoked or canceled. Under Section 123 of the Transfer of Property Act, if an immovable property is settled under registered sale deed the title in the property will be transferred in favour of the transferee and it is not stipulated in the said provision that possession should be handed over immediately. If it is sought to be cancelled unilaterally the same can only be done by instituting a suit for cancellation u/s 31 of the Specific Relief Act, 1963 and not via a deed.

1.	Is the cancellation of settlement by A valid? No it is not valid 
2.	Can A  write a will on the property (when the case  by B and C is in court) and  get it registered?  A can write will any time except this property.
3.	Can A get 100 % property rights? It depends up on the evidence tendered in court 
4.	Will she get it under Maintenance of senoir citizens and welfare Act 2007?

Maintenance and Welfare of Parents and Senior Citizens Act,2007 ,seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens.

•	If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain him then he can claim forgetting monthly allowance for his maintenance.

•	Sec.23 of the act provides protection of his property and considers the Transfer of property to be void in certain circumstances
Ajay N S
Advocate, Ernakulam
2766 Answers
47 Consultations

5.0 on 5.0

1.The deed of settlement, after it had taken effect, could not be cancelled unilaterally by A by applying to the registrar. It can be cancelled only by a court of law on the lawsuit filed by A. The only ground on which A may, in the given scenario, seek the cancellation of the settlement deed is coercion. 

2. It will be difficult for A to prove that he was coerced to settle his property in favour of B and C.

3. The cancellation made before the registrar is a nullity in the eyes of the law and can be declared so by the court. 

4. B and C can also move to court to challenge the cancellation made by A before the registrar as it is a nullity in law.

5. A cannot make a will until and unless the settlement deed is struck down as illegal by the court.

6. The order of temporary injunction passed in favour of B and C does not emasculate or extinguish the right of A to collaterally challenge the settlement deed and the rights which ensued to B and C in pursuance to the execution of settlement deed.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

1) once A has executed deed of family settlement A cannot cancel it unilaterally .

2) A has to move court to set aside settlement deed on grounds of coercion .

3) A cannot write will in respect of said property unless settlement deed is set aside by courts 

4) will will not supersede deed of settlement 

5) A will not get 100%property rights unless court sets aside settlement deed 

6) A can move senior citizen Tribunal for setting aside gift deed and for obtaining protection order against B and C
Ajay Sethi
Advocate, Mumbai
45474 Answers
2672 Consultations

5.0 on 5.0

The deed of settlement cannot be cancelled by A. An application for cancellation of the same is to be filed before the court for setting aside the terms on the grounds of coercion, etc. Until the settlement deed is duly cancelled by the court, no further WIll or selling of the property can be done by A. Further, obtaining temporary injunction does not stand in the way of A to get the settlement deed cancelled on grounds of coercion.
Shaveta Sanghi
Advocate, Panchkula
866 Answers
64 Consultations

5.0 on 5.0

1. The settlement deed is required to be seen for giving proper advice,

2. Once settlement deed is registered, it can not be cancelled by the settlor,

3. It can be cancelled only with Court order if the settlor can prove before the court that the settlement deed has been executed by fraud, coercion etc.,

4. The settlor can not execute a will unless the settlement deed is cancelled by the Court. Her will shall not supersede the settlement deed executed and registered by her,

5. A can not get 100% share of the property when he has executed te settlement deed,

6.  She will get maintenance under Maintenance of senoir citizens and welfare  Act 2007.
Krishna Kishore Ganguly
Advocate, Kolkata
18471 Answers
448 Consultations

5.0 on 5.0

Dear Querist
My opinion on your queries are as under:

Is the cancellation of setlement by A  valid ?
Opinion: Yes, trhe cancellation of settlement is valid and hse has a right to file the cancellation/declaration suit before   civil court of jurisdiction.

 Can  A  write a will on the property (when the case  by B and C is in court) and  get it registered?
Opinion: Yes, she has also right to execute/make a Will as per her wish and registered the same before registrar.

 Can A get  100 % porperty rights ?
Opinion: yes, if she proved that this property is her self acquired property and purchased by her own income.

 Will she get it under Maintenance of senoir citizens and welfare  Act 2007?
Opinion: Yes, she can but the civil suit is better.

 Does a will supercede settlement given?
Opinion: When the cancellation of settlement is decide then nobody can restrain her to do that.
she is the absolute owner of the property and has all rights to enjoy, sell, rent, lease and disposed off the property by way of Gift.
Nadeem Qureshi
Advocate, New Delhi
4856 Answers
221 Consultations

4.9 on 5.0

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