1)since your brother in law is missing and FIR is lodged on expiry of 7 years he can be presumed dead

2) section 108 of Evidence act deals with presumption of death . when person is missing for 7 years and not heard of by friends, neighbours he is presumed to be dead

3) you can file declaratory suit that he is missing for 7 years and be declared as dead . enclose copy of FIR

4)even if you repay the loan bank would not return original documents to you

5)gift deed cannot be revoked by mother unilaterally . you need court orders to revoke gift deed

6) unilateral revocation of gift deed and subsequent gift deed executed by mother would not with stand judicial scrutiny

7) best option is to wait for one year . file declaratory suit that he is dead

1) gift deed cannot be cancelled unilaterally

2) you need court orders to set aside gift deed

Hi, Once the gift deed was executed it can't be cancelled or revoked. So your mother-in-law can't execute fresh gift deed to any other person.

2. So better you can file a civil suit in the court for deceleration that your brother in Law is not heard or seen more than 7 years and he may be declared as a Civil Death and the property has to be alienated to his legal heirs.

3. Once the Court has passed an order then his legal heirs has to obtain discharge deed from the Bank and then they can dispose of the property.

your wife can on basis of GPA repay the loan and obtain original property papers from bank

2) for remortgage bank would insist on regd POA

Answers: 1) In order to obtain a discharge certificate from the bank, you will need to repay the entire outstanding loan amount to the bank and they in turn will issue a discharge certificate to you, with this certificate you can get the mortgage entry also closed in the E.C.

2) It is necessary to see if the Gift made by your mother in law is revocable during her lifetime or not, if it is an irrevocable or absolute gift then it cannot be revoked by her. On the other hand your wife, along with her mother can file a suit seeking a declaration from the Hon'ble court to declare the Gift Deed as Null and void, as the Donee has been missing for a period of more than 7 years and therefore he may be presumed to be dead, in other words this suit cannot be filed until the lapse of 7 years from the date when your brother in law went missing and the FIR was lodged.

3) Answered in part in 2 above. 4) If the original owner during her life time is gifting away the property in favour of her daughter, nobody other than the true owner has any right, title or interest to do so.

Now I Want to know

(1) How to obtain a discharge certificate from the bank and cancel the mortgage entry in the EC

Though you people may be paying the loan repayment and have even discharged the entire loan, the bank is not obliged to give discharge certificate or NOC or hand over the title documents to a person other than the borrower until and unless authorised by the borrower or to the legal heirs of the borrower if the borrower is dead by producing the legal heirship certificate.

Therefore the mortgage entry cannot be cancelled to reflect the same in the EC without following the prescribed procedures in this regard.

(2) if this deed can be revoked by the donor and execute a fresh Gift Deed to her daughter (my wife)

The registered gift deed, which was acted upon by the donee canot be revoked by the donor at this stage or at any stage for any reason whatsoever.

(3) if at all it can be revoked by the donor, please specify the grounds/circumstances under which it can be revoked by the donor?

It cannot be revoked or cancelled by the donor for any reason or under any circumstances at this stage.

(4) whether other legal heirs claim any share in the property gifted to my wife?

If he is missing and not have been heard of for more than 7 years, then a declaration suit may be filed before a civil court to declare him civil dead, after which you can obtain the legal heirship certificate from the Tahsildar's office or revenue department and accordingly his class I legal heir, i.e., his mother can acquire his property in the capacity of legal heir and not in the capacity of donor.

No other person can claim any share in this property during his mother's lifetime in any capacity because he is unmarried person.

in this case do a sub registrar has the powers to cancel the gift deed or through a court of law need to be cancelled.

Neither the sub-registrar nor a court of law can cancel the registered gift deed at this stage for any reason, especially for this reason that he is missing.

The procedures to be followed for man missing and declaring 'civil dead' are the proper procedure in this regard to acquire the property

1) During his stay with us he executed one unregistered GPA in my wife's name, now can she execute this GPA for discharge from bank and again re mortgage the property in her name

The unregistered power of attorney deed is not valid in respect of immovable properties.

For registration of the same that principal has to be present before the sub-registrar's office.

Therefore in the absence of the property owner the legal procedures meant for it as prescribed in the Hindu succession law is to be followed.