• Legally gift deed transferred flat, can brother do court proceedings

I own a flat in Mumbai, which is legally transferred through Gift deed by my Mother in 2013, All stamp duty & Registration fees are paid & registered in my CHS. Now my elder brother staying abroad wants to do court proceedings on me, can he do it?
Asked 4 years ago in Property Law
Religion: Hindu

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18 Answers

1) your mother out of her own free will executed gift deed of flat in your favour . once gift deed executed you would be absolute owner of the flat

2)your brother can file suit to set aside gift deed

3) however chances of success are bleak

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

If this flat was a self-acquired property of your mother, she could have very well transferred this to you under a gift deed.

This gift deed is valid for all purposes.

Even if your brother manages to file a case challenging this gift deed, he's most unlikely to succeed.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. No body, including your elder brother, can be restrained from filing cases before the Court of law.

2. The case so filed should have merit in it to get favorable judgement.

3. In the instant case, you are the absolute owner of the sad property and your brother will not have any merit in his case, if filed by him, claiming share of the said property which was gifted to you by your mother.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

the allottee shall have the right to cancel/withdraw his allotment in the project as provided in the Act: Provided that where the allottee proposes to cancel/withdraw from the project without any fault of the promoter, the promoter herein is entitled to forfeit the booking amount paid for the allotment. The balance amount of money paid by the allottee shall be returned by the promoter to the allottee within 45 days of such cancellation,

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

own a flat in Mumbai, which is legally transferred through Gift deed by my Mother in 2013, All stamp duty & Registration fees are paid & registered in my CHS. Now my elder brother staying abroad wants to do court proceedings on me, can he do it?

Answer: As per S.14 of the Hindu Succession Act, 1956, the property acquired by a female hindu shall be her absolute property. However, a proviso (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

If it is gifted to you in the form of restricted estate, then your brother can claim a share.

=============================================

2. As my daughter has booked a flat by paying Rs 99000 through card, having receipt at Dombivali, As her bank loan sanctions will take time at least another 2 months, the builder says if she is not able to make part payment, he will cancel the booking& will not refund the booking at, 1 week from now on, as per RERA if flat booking is cancelled can she get the booking amount legally?

Answer:

Also, S.13. (1) of the Real Estate Regulation Act, A promoter shall not accept a sum more than ten per cent of the cost of the apartment, plot, or building as the case may be, as an advance payment or an application fee, from a person without first entering into a written agreement for sale with such person and register the said agreement for sale, under any law for the time being in force.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1.T he gift is revocable and can not be change. So please be relaxed and there is nothing left in that transection.

2. If there is a clause in the application form and you agreed for the payment plan and not paying the demand the builder may charge interest on the overdue amount but can not cancel the booking. If he cancels then he need to pay back the amount with interest.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. He can but he is likely to loose.

2. Ask ur daughter to move to consumer court

Subhendu Ghosh
Advocate, Barrackpore
234 Answers

4.0 on 5.0

Hello,

No he can not do the same.

If any such suit is filed then you can get the same dismissed on the basis of the gift deed.

If the gift deed has been made then the title has been transferred to you and then you have clear and marketable title.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If the flat is cancelled due to the fault of the promoter/ builder then also you can go to RERA, but you will not have a strong case.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi, a gift deed can only be challenged if it was obtain through force , fear of hurt or by any other unlawful means ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Any deduction by the builder from the booking amount, has to be strictly in accordance with the terms and conditions of the booking.

Please reproduce the relevant covenants from the terms and conditions of the 'Booking Form' so that a concrete reply can be given to you.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

For your first question answer is time has been lapsed and the flat is clear titled on your name. Don't worry.

For your second question answer is

When can you really challenge Forfeiture of Earnest Money ?

A home buyer can easily challenge the developer’s decision to forfeit the earnest money in following cases.

a) If cancellation is sought at a stage when no agreement is signed which contains cancellation clause.

b) Buyer is not happy with the terms and conditions of Builder Buyer Agreement which is not supplied on time by the developer.

c) Developer does not have necessary approvals and buyer seek cancellation. In case of delay, if the buyer decides to stop the payments, builder has right to cancel the allotment and forfeit the earnest money.

This was decided in DLF Southern Towns Pvt. Ltd. vs. Dipu C. Seminlal, 2015 in NCDRC.

The new Real Estate Regulation Act (RERA) will enable homebuyers to exit real estate deals smoothly. The Act, which came into force on May 1, stipulates that homebuyers can cancel allotment of the apartment booked with a builder at any stage even if there is no default on the part of the developer. The builder is also bound by law to return the money collected from buyers within 45 days, after deducting the booking amount.

“The allottee shall have the right to cancel/withdraw his allotment in the project as provided in the Act: Provided that where the allottee proposes to cancel/withdraw from the project without any fault of the promoter, the promoter herein is entitled to forfeit the booking amount paid for the allotment. The balance amount of money paid by the allottee shall be returned by the promoter to the allottee within 45 days of such cancellation,” says the rule.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Your gift deed is safe and you do not have to worry. If he files a civil suit reject the plaint under order 7 rule 11 of CPC.

Yugal Anjana Bhatia
Advocate, Mumbai
47 Answers

4.9 on 5.0

1. with respect to the first question , if your mother who has gifted the property in your favor was the owner of the flat, then the owner is within their right to transfer it and same cannot be challenged. the challenge to the same can only be on the ground of benami transaction. , i.e. if the flat was brought by father in the name of mother using the entire funds of its own , then in that case you will have to file a suit seeking declaration that father was the owner of the premises and also seek cancellation of the gift deed from the court. let me tell you that this is no an easy process.

Devendra Singh

Devendra Singh
Advocate, Mumbai
39 Answers

4.3 on 5.0

The property properly transferred to your name by executing a registered gift deed is legally valid until the donor is not having clear and marketable title to this transfer.

If your mother was having marketable title to execute this gift deed, your brother's case is not maintainable, he may be fighting a losing legal battle.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

As my daughter has booked a flat by paying Rs 99000 through card, having receipt at Dombivali, As her bank loan sanctions will take time at least another 2 months, the builder says if she is not able to make part payment, he will cancel the booking& will not refund the booking at, 1 week from now on, as per RERA if flat booking is cancelled can she get the booking amount legally?

The builder cannot refuse to refund the booking amount after reasonable deductions if the buyer is not able to augment funds within stipulated time for the purchase of immovable property.

The builder can be dragged to RERA or even the consumer forum because his threats cannot persist or maintainable in law.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

1. Any Tom, Dick or Harry can go to the court to file a suit for cancellation of the gift deed. You cannot stop your brother from filing the suit.

2. A gift deed can be challenged only on the ground that the donor had no competence to execute it or that his consent to the gift deed was not free as it was induced by coercion, undue influence or fraud. The onus to prove that free consent was missing will be on your brother.

3. To be on a safer side you may file a caveat and renew it periodically to preempt any attempt by him to get an ad interim ex parte injunction against your right to alienate the property.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. IF the mother is the First Original Purchaser of the Flat, ONLY THEN she can make Gift Deed, otherwise no.

2. IF the Flat was transferred on the basis of any Nomination or any other legally non-teneable document THEN mother cannot execute any Gift Deed. In such cases all the residual legal heirs will have equal right over the deceased's property.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

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