• Gift deed

My mother's Sister and her husband gave his all properties by will in 1994 with notrized. They don't have any issue. My Uncle(masa) expired in 2002 and my Aunty(Masi) expired in 2012. In 2010 My aunty give His house as Gift to me with Gift Deed. My Uncle's brother's son now give me court notice for challenging that will done by my Uncle and Aunty. They included all properties included into will. So that gifted property also included into this case. Please give your expert advice.
Asked 2 years ago in Property Law from Gandhinagar, Gujarat
1)in the will all properties  owned by your aunt and uncle  are mentioned . 

2) will takes effect on death of testator 

3)your uncle /aunt can during lifetime sell , gift the properties owned by them . 

4)once property is gifted by them you are absolute owner of said property . 

5) unless gift deed is challenged by your cousin and set aside by court you continue to remain absolute owner of the property 

6) gifted property would not be included in case as it has been gifted during lifetime of your aunt and it supersedes provision of will
Ajay Sethi
Advocate, Mumbai
23391 Answers
1229 Consultations
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1) in your reply you must mention that property has been gifted after execution of will . 

2) unless gift deed is challenged no stay would be granted . 

3)registration of will is optional not mandatory . 

4) you may have to apply for probate of will in respect of other properties bequeathed by your uncle /aunt
Ajay Sethi
Advocate, Mumbai
23391 Answers
1229 Consultations
5.0 on 5.0
1. Has the Gift Deed been registered?

2. If not then the said Gift Deed is invalid and has no legal value,

3. The Will will prevail under the above circumstances.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. Will is not required to be registered to be enforceable,

2. If it is mentioned in the will  that all properties are included, then it includes your so called gifted property also(if the gift deed stands invalid for not being registered),

3.If the Gift Deed has been registered then you are the absolute owner of the said gifted property.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. The will was made in 1994, whereas the gift deed of the property was made by your aunt in 2010.

2. If the properties which were bequeathed to you in 1994 were the self acquired properties of your aunt and her husband, their right to make a will in respect thereof was absolute and unfettered. The will made by them can be challenged in the court only on the ground that the said will was not made by them with their free volition.

3. If you are unsuccessful in repelling the challenge to the will then the properties would devolve according to the law of succession.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
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1. If the will alone has been challenged, the properties gifted by your aunt to the extent they are at variance from the properties to which the will of 1994 relates, the court order would have no bearing on the gifted properties. However, it is open to them to challenge the gift deed by filing a separate lawsuit.

2. You should engage a lawyer and file your reply.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
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Section 213 in The Indian Succession Act, 1925 says that no right as executor or legatee can be established in any court unless a court of competent jurisdiction has granted probate of the Will under which the right is claimed or has granted letters of administration in respect of the Will. S.213 of the Act was amended by adding the words "Indian Christians" after the word "Mohammedans" with a view to providing that in case of Wills executed by Christians also, the requirement under S. 213(1) of the Act is not necessary. 

The execution of the Will has to be proved by the propounder of the Will.
Solution 
Defend the suit and adduce evidence
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
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