• Gift deed before partition of the property

Sir/Madam,
I want to explain the situation with example.
There are 3 brothers A,B,C. A & B are Govt. Servants and the third one C is jobless. They had undivided ancestral property. Mr.B got the gift deed( of the undivided property) executed by C under fraud/coercion and registered it in his name in 2004. Now "C" is doner of his portion of the undivided property. Subsequently the 3 brothers divided the property and registered the partition deed in 2013.
- whether The gift deed before the partition is valid ie which is executed before partition
- Whether Mr.C has clear title to sell the property.
- Whether Mr.C can cancel the gift deed.
Asked 6 years ago in Property Law
Religion: Hindu

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15 Answers

Gift deed can be cancelled with mutual consent

Gift deed is valid

Once C executed gift deed in favour of B he had no share in property

Ajay Sethi
Advocate, Mumbai
94700 Answers
7528 Consultations

5.0 on 5.0

1.One can always transfer his undivided sahre in the joint proeprty to anyone he chooses.

So transfer beofre physical partition of the joint proeprty is very much valid and binding upon the parties.

At the time of gift deed C had legal right to transfer his 1/3rd sahre to B.

Now if the said deed was done by use of force, fraud and cericion then C can file a suit for revocation of sch deed .However after so many years the proof of fraud or frice would be very difficult to prove.

Without a decree of court setting aside the gift there is no other way to cancel the gift deed.

Devajyoti Barman
Advocate, Kolkata
22817 Answers
488 Consultations

5.0 on 5.0

It's not possible to sell/gift property before clear title.

No the gift deed is not.valid before partition.

No he doesnot without partition.

Question of cancelling does not arise yes it has to be challanged on ground that the share is still not clear.no deed can be made on future property.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1) C could have executed gift deed for his undivided share in property

2) gift deed is duly stamped and registered

3) partition deed could not have been executed by C

Ajay Sethi
Advocate, Mumbai
94700 Answers
7528 Consultations

5.0 on 5.0

Once gift is made it is irrevocable. But if the gift is made by fraud coercion a suit can be filed for cancellation of gift deed.

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

If the property.details are not mentioned than how can mr c gift the property.

A right of Share in property cannot be gifted through a gifted deed.

A gift deed created before partition is not a valid deed.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1) Yes ! Mr. C can cancel gift deed, If B is not ready to accept the gift and he do not want gift, can revoke the gift and make a registration , As per The Transfer of Property Act

Sec 126

126. When gift may be suspended or revoked. - The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Ganesh Kadam
Advocate, Pune
12930 Answers
255 Consultations

4.9 on 5.0

1. UNdivided property CANNOT be Gifted, in any manner.

2. Once a property is DULY Gifted, the same property CANNOT be a part of any Partition Deed.

The whole thing is legally haywire.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

C has the valid title to the property though C has executed the gift deed in favour of B.

Subsequent partition deed gives rights to C and supersedes the gift executed. and B can not claim rights since under partition he has admitted that C will be the owner of the property allocated to him.

Rajashekar
Advocate, Bangalore
591 Answers
4 Consultations

4.8 on 5.0

Once the property is gifted, the donor loses his interest and do not have right over the property.However, the subsequent P.Deed over the same property reinforce that the G.Deed lost its legal force. The latter document shall prevail thereby revealing the renewed intent of the parties.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

Hi, C Can only make a gift deed of his share in the property and not of yours

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

- One can gift a Property only when he is the absolute owner of that property.

- In case of ancestral property his right must be severed only then he has absolute right to gift.

Hence,before getting his share in the property ,no one can gift any share of that property .

If,there is gift deed before partition ,then that has no legal value.

Mohammed Shahzad
Advocate, Delhi
13211 Answers
198 Consultations

5.0 on 5.0

The concept of the gift deed is that the donor should have clear and marketable title to the property being donated as gift to any person.

If C had no title to the property transferred by execution of a registered gift deed, then the gift deed itself is void and invalid in law.

He can approach court seeking cancellation of the gift deed executed by him for the reason as stated above.

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

On getting a registered partition deed, the shareholders shall become absolute owners of their respective share in the property.

They can get their share of property mutated on their respective names on the basis of the registered partition deed.

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

Dear,

My answers to your questions:

1. Whether the gift deed before the partition is valid i.e, which is executed before partition.

Ans: Yes. the gift deed before the partition deed is valid if it is registered.

2. Whether Mr.C has clear title to sell the property

Ans: When C is the donor of his portion of the property, he loses his right over Mr B. Now Mr B is the owner of the C's share in the property.

3.Whether Mr.C can cancel the gift deed

Ans: Mr C can seek for the cancellation of the gift deed if the deed was registered under fraud, coercion and undue influence.

B Srikiran
Advocate, Hyderabad
37 Answers
1 Consultation

5.0 on 5.0

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