• Senior citizen wants gifted property back

Sir
My mother is 75 yrs.old, Retired pensioner as a school teacher.My Father has constructed a house. After his demise, the legal heirs to this property were myself, my elder brother, elder sister and my mother. I surrendered my share by Gift deed and moved to my new house. My mother Gifted her 1/4th share to my elder brother by a Gift deed. He and his wife later started tormenting her causing her a lot of mental agony. Unable to bear this, she had approached the police. She has a copy of the letter. 
My mother had also lent some money to my Brother. My mother asked my brother to return the money and the Property share, to which, he flatly refused.
Having realised that she has done Injustice to the other children, She then has filed a civil suit in the local court in 2011. The case is going on and my Mother is now despearate and her diabetic condition is getting worse.

Prior to her gift deed, she had made a will, so as my brother would Inherit her property share, Money, Jewellry etc.
I was aware of this. I wanted to respect her will and so I gave my consent to the my mother's gift deed.

How can she get back her share of the property ?
Whom she should approach for relief under senior citizen act, sec 23 ?
Asked 1 year ago in Family Law from Miraj, Maharashtra
Religion: Hindu
1. Well gift deed once done can hardly be set aside However in the event of passing of THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007, the person who has gifted the property to her tormenting son can apply for his eviction from the property. The tormenting child can be directed to provide maintenance to mother as well.

2. Since she has already filed police complaint then she should now move to high court. The high courts thse days come down very heavily on such errant sons.

3. She should immediately cancel her previous Will and make a fresh ill bequeathing  her property to some other person.

4. Generally SDO or ADM functions as such Tribunal wherein the case under SEnior Citizen Act can be filed. So meet your local Collectorate/Tehsildar/DM office.
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
1. An unconditional Gift Deed can not be cancelled or revoked,

2. Your old and ailing mother can file a case for maintenance as per Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the DM of your District,

3.  Under which section she has filed a civil suit in the local court in 2011?

4. She can also lodge a police complaint for the torture metted on her by your brother and his wife.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1) it is your case that civil suit has been filed by your mother in 2011 . if it was filed for setting aside gift deed then you r mother cannot move senior citizen tribunal for setting aside gift deed 

2) at most your mother can move court for expediting hearing and final disposal of civil suit pending since 2011 

3) on the other hand if suit filed in 2011 was not relating to setting aside gift deed your mother can move senior citizen tribunal for setting aside gift deed if her son fails to maintain her and gift deed is on account of coercion or fraud or undue influence 

4) your mother can revoke earlier will and execute fresh will if she so desires
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                                                    CHANDIGARH.

                                                     CWP No. 20072 of 2013

                                              Date of Decision: December 6, 2013

                    Promil Tomar and others

                                                           .....Petitioners

                                  Vs.

                    State of Haryana and others

                                                           ...

Section 23 (1) of the Maintenance Act further provides that if the transfer is subject to a condition that transferee shall provide basic amenities and basic physical needs to the transferor and transferee refused to do so, the transfer of property shall be deemed to have been made by fraud, coercion or undue influence and would be declared so by the Maintenance Tribunal on the option of transferor. A senior citizen who had transferred his right, title or interest to any other person by gift or otherwise (which would include transfer of possession by lease, mortgage or licence) would become void in the event of transferee refusing to provide amenities and physical needs. The said transfer in such circumstances would be termed as fraud and would be void.

The word "fraud" used in the Maintenance Act has to be understood in context to its meaning given by different Courts at different times. The Apex Court in S.P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853 has considered the meaning of word "fraud" i.e. an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. It was held in the said judgment that "fraud" vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the Gupta Sanjay 2013.12.16 16:06 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 20072 of 2013 [24] other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.

In Ram Chandra Singh Vs. Savitri Devi and others, (2003) 8 SCC 319, it was observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1. Your mother can file a suit praying for setting aside/cancellation of the Gift Deed on the ground that she is being refused to be maintained by her son after she was induced by him to gift her property to him with the assurance that he will be maintained by her said son,

2. If the said Gift Deed is set aside or cancelled by the Court, she can further deal with the property the way she likes.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1. What is the nature of the suit filed by you mother in the local court?

2. Your mother could transfer her share to any person of her choice. In case it has been transferred by way of gift deed to her son, he became the absolute owner of the property Other legal heirs have no rights to claim share in the gifted property.

3. A gift deed once executed cannot be unilaterally revoked. The only legal recourse available to your mother is to file a case for cancellation of the gift deed in the court on the ground that the gift deed is vitiated by fraud and her elder son did not maintain her in her old age . It is the court alone which can now cancel the gift deed executed by your mother. Unless the gift deed is cancelled by the court your elder brother remains the absolute owner of the property gifted to her.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. The local collector has no authority of law to revoke the gift deed. 

2. As I mentioned earlier, the gift deed can be set aside only by the civil court.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

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