• How to cancel a fraudulently executed gift deed

Hello
We are three brothers and the youngest one entered in to a secret agreement with my father to build a house for himself on the first floor of my fathers property. He then got a gift deed executed in his name( without our knowledge) stating he has great respect for both my father as well as mother and shall look after them very well in their old age. He also took my fathers original property sale deed along with the gift deed and kept as security with a bank and obtained loan and constructed a house on first floor. Once house constructed, he hardly stayed there and also abandoned my old parents and shifted to a rented house close to his father in-law on the insistence of his wife. Although he has repaid his housing loan and living in his new flat in another locality he is not returning my fathers original property document and gift deed in spite of several reminders. It is learnt he has also now taken additional loan of Rs. 3 lakh ( repayable in 10 years )using the same papers as security with out even informing my father. Clearly, his intention is to delay as my father is already aged 84 and usurp the entire property. Now my father has realised his mistake and wants to cancel the gift deed and once again become absolute owner. Is possible , if so what has to be done. Victor
Asked 4 years ago in Property Law
Religion: Christian

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12 Answers

I would advise you to complaint before maintenance tribunal under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, for.cancellation of the will.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

23. Transfer of property to be void in certain circumstances.-

1. Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

2. Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

3. If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.

The link of recent judgement of.kerela.high court on same facts is mentioned below. http://www.livelaw.in/gift-deed-senior-citizen-revocable-even-doesnt-bear-dedicated-welfare-clause-kerala-hc/.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Once gift deed is executed your brother would be absolute owner of the property

2) your father has to file suit to set aside gift deed on grounds of coercion or undue influence

3) your father can not cancel gift deed unilaterally

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Section 126 lays down two modes of revocation of gift:

(i) Revocation by mutual agreement of donor and donee.

(ii) Revocation by rescission as in the case of contracts. it will be read with section 19 of Indian Contract Acts

provides "Where consent to an agreement is caused by Coercion, Undue Influence, Fraud or Misrepresentation and its limitation period is 3 years from known to donor.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1.Well,the gift deed once executed can not be cancelled anymore.

2.However under Maintenance and Welfare of Senior Citizens Act,2007 he can challenge such deed wherein the Tribunal can revoke the deed and direct himto let your father take possession of the proeprty.

3. Ask Your father to make gift deed/Will in respect of the remaining proeprty if he wish not to give his younger son any other proeprty.

4. Since he is not the owner of the whole proeprty he can not keep mortgage of the same.Inform The bank stating your father's opposition to mortgage the proeprty anymore.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Sir,

Since your father is ready to cancel Gift Deed, it can be done through shortcut method by filing a petition under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before Assistant Commissioner revenue, Kandaya Bhavan Bengaluru. The following link may be visited

http://www.advocatekhoj.com/library/bareacts/maintenance/index.php?Title=Maintenance%20and%20Welfare%20of%20Parents%20and%20Senior%20Citizens%20Act

http://citizenmatters.in/guide-to-senior-citizen-law-on-rights-and-maintenance-3549

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

In one case decided by the Madras HC, the donor after gifting the property and the donee having accepted is left with no interest in the said property. It can be cancelled only by filing a civil suit and the registrar is not the competent authority as per S.126 of the act.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

If the gift deed executed by your father is a irrevocable gift, then it cannot be revoked or cancelled. Otherwise, the same can be revoked or cancelled by your father.

Alternatively, your father has to file a suit for declaration before the civil court seeking cancellation of the gift deed executed by him under duress and fraud. This will take considerable time and also the process is expensive.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

Once the gift deed is executed and registered it can't be cancelled unilateral. Only revocable gift deed can be revoked by donor. In your case you can try provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to secure your property back.

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Please let us know is it self acquired or ancestral property. File A suit for declaration stating that the gift deed was executed by undue influence coercion and same is illegal and void.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Hello,

Yes this is possible.

the same can be challenged in the ground of force and coercion.

Ask your father to challenge the same on the ground that the said gift was taken by force.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

The registered gift deed, if not imposed with any condition cannot be revoked or cancelled by the donor for any reason even if he is approaching the court of law.

The loan papers, if your father has not signed as co-applicant, then he can object to this, but if he has signed it then he cannot get out of this before discharge of the loan amount.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

If your father was conned to execute this gift deed, this gift is bad since he was fraudulently made to execute the same.

You father may file a suit for cancellation of the concerned gift deed.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

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