Hello, My Mother was owning a BDA property which was purchased by the allottee, Later she passed away with out making any Will living behind my father and 3 kids. My father got an affidavit singed by all children's are got the KHATA transferred on to his name, As of date KHATA is in the name of my father and tax paid accordingly for the financial year. Now, My father wants to transfer the property to me(3rd Kid), Can he make a gift deed without informing other kids( just to avoid family tensions) based on the KHATA & affidavit which was given on to his name.
Considering Other 2 kids have got there gift from my parents already and i have a proof of gift being made to other 2 kids .
1)gift deed would not be valid
2) mere execution of affidavit by children does not amount to relinquishing interest in property
3) gift deed or relinquishment deed has to be executed by the children in favour of father
4) gift deed can be set aside by court on application made by other children
your father should obtain relinquishment or gift deed from his other 2 children then only execute any gift deed in your favour
A. Since your mother died intestate (without a will) that you and your brother and father will have equal share over the BDA property.
B. Mere execution of Affidavit towards change of khata not amounting to release of right. Hence, Registered Release Deed shall be executed by two brother in favour of you or father before execution of Gift Deed. Khatha would be made to pay tax payment towards the property. Hence, khatha or Mutation cannot be treated as document of title.
C. Therefore, father can transfer his respective share towards BDA property through Gift beyond other two kids share.
A. As far as the Gift towards two kids is concerned that would not defeat the rights of the two kids over BDA property and you cannot claim whole share excluding two brother as well father over the mother property.
B. Secondly, details pertaining into Gift made in favour of two brother is required.
After the death of your mother her legal heirs - you and your brother and father become the absolute owners of the flat. Mere execution of Affidavit towards change of khata is not amounting to release of right. So your father can gift only his share in favour of you.
Previously gifted the deed in favour of other siblings is not a ground for getting the same for you. A Gift Deed is a legal document that describes voluntary transfer of gift from donor (owner of property) to donee (receiver of gift) without any exchange of money. Once a gift deed of an immovable property is executed in favour of any recipient, the donor does not have the right to revoke or cancel the deed at a later stage, unless there is a specific clause mentioned in the deed. Section 126 of the property transfer Act provides for a situation wherein a gift deed may be revoked by the donor.
1. Khata is not a document of title. Its relevance is only for revenue purposes.
2. On the intestate demise of your mother her property devolved through succession on her husband and children equally. Hence, your father can transfer only his 1/4th share in the property, not beyond it.
1. Having your father's name as Khatedar in the Katha Certificate doesn't make him the absolute owner of the property.
2. In view of your mother's intestate death, the share of the property shall devolve equally to your father and 3 children.
3. Each one of the legal heirs is entitled to 1/4th share in the property.
4. Your father has no right over other 3 shares of his children to gift it to one particular child, because he is only a co-owner, along with 3 of his children. Atmost he can gift his 1/4th share in the property to any person, including his son.
5. Based on an Affidavit of other sons giving NOC in favour of their father to enable him to transfer name of the Khatedar in his name for the instant property does not make him the absolute owner for the entire property.
6. However if the other 2 Sons also join their father in executing the Registered Gift or Release Deed in your favour, then you can be the Absolute Owner of the instant property.
Follow up question - initially though BDA property was purchased by my Mother who was a house wife behind the scene My father had paid the money by selling his other property(Have required documents for the same). Will that help in declaring him as a 100% Owner of the property after the death of my mother, so that he has full rights to give me a GIFT/RELEASE deed without deed being signed given my other brothers.
father has to during mother lifetime file declaratory suit that he is absolute owner of plot as full payment made by him and mother is a housewife with no source of income
2) if mother does not contest father would get exparte decree
3) then father can gift plot to you
1. Because in the Sale Deed executed by the BDA in favour of your mother only for the property in question, it cannot be disputed that she is not the absolute owner of the property.
2. However in the Sale Deed if there is a narration regarding the source of funds obtained from your father for property has found a place, then it can be presumed that your father is the Absolute Owner of the property.
Katha is not the title document.
Your father cannot claim ownership or title to the property based on the katha on his name.
This property belonged to your deceased mother and upon her intestate death it devolved equally on all her legal heirs consisting your father and her three children.
Relinquishing their rights by an affidavit is not legally valid.
They can very well clam their share in the property anytime in the future.
You cannot deny their share at that time.
Instead, all the three i.e., your father and your siblings can jointly execute a registered release deed relinquishing their rights in your favor, which is the proper and perfect legal remedy to this.
Considering Other 2 kids have got there gift from my parents already and i have a proof of gift being made to other 2 kids .
As far as this property is concerned, the title is open after the death of your mother, hence all the four have rights to an equal share in this property.
You cannot mix that gifts with this property issue legally.
You can sit and talk about this and arrive at a mutually agreed arrangement for sharing this property on the basis of settlement of other properties and draw a family settlement deed which will be more beneficial.
Follow up question - initially though BDA property was purchased by my Mother who was a house wife behind the scene My father had paid the money by selling his other property(Have required documents for the same). Will that help in declaring him as a 100% Owner of the property after the death of my mother, so that he has full rights to give me a GIFT/RELEASE deed without deed being signed given my other brothers.
Even if you have substantial proof to prove that your father fully funded for the purchase of this property and your mother never had any source of income to purchase this property, since the property is registered on her name, it becomes her own and absolute property.
Thus Hindu law of intestate succession will be operative for this intestate property.
The title deed indicate who is the owner of the property. Who paid the consideration is only a secondary things .More over your mother died intestate with out creating a will. So the property should be divided among legal heirs equally. Your father has no full rightover the property.
It needs to be proved in court that your father funded your mother to buy the property, In case the GIFT deed executed to you. ( without the consent of other 2 kids ) .
