• Gifting of undivided share in a joint family property

We have a tenanted ancestral property co-owned by 4 other brothers. Couple of days earlier one co-owner gifted his share to a private trust and sent all the other co-owners a letter sighting the gift. No family members/ co-owners live at the premises. Now, here are my questions/ queries

1. Can he donate/ gift the property without our knowledge?
2. It's an undivided property but through mutual settlement an office was under his possession. So if the deed mentions the office, can the deed be considered null and void?
3. What action must be taken by us and under which section?
4. Does the law of right to preemtion apply here?
5. I read somewhere that a coparcenary ancestral property cannot be gifted or donated without the consent of the other co-owners. If it's true then how can I challenge him?
Asked 4 years ago in Property Law
Religion: Hindu

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10 Answers

1. Yes he can donate gift his share(Undivided share) without any intimation.

2. If there was mutual settlement for dividing share then the suit is not null and void thought it can be disputed and contested.

3. If the sale deed is specifically for sale of the office then in that case you can file a suit in civil court for setting aside the sale deed under specific relief act as there was no demarcation of property on record,

4. In my onion it wont apply here.

5. Sir the nature of the ancestral property has to ascertained further a suit for cancellation of the deed and suit for partition can be filed.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. consent of other coparcenors would be needed if the property gifted is a residential property where the HUF members reside

2. the coparcenor can alienate his undivided share in the HUF property by gifting it to any person of his choice, provided that property is not a residential property

3. the buyer or donee can thereafter seek partition of his share

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

1) tenancy rights cannot be gifted

2) no third party rights can be created without landlord consent

3) file suit to set aside gift deed

4) seek injunction restraining purchaser from creating third party rights on property

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Yes,

If Mutual settlement is in written or under long possession than deed is valid and void can be declared by court only.

Gifting Undivided property to third party, right of pre emption will prevail.

And Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing entitle him to joint possession or other common or part enjoyment of the house.

U/s sec 44 of Transfer of Property Act, same can b challenged.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Can he donate/ gift the property without our knowledge?

Answer: He can part with only his share of the property;

2. It's an undivided property but through mutual settlement an office was under his possession. So if the deed mentions the office, can the deed be considered null and void?

Answer: If the office forms main part of the building then it cannot be sold;

3. What action must be taken by us and under which section?

Answer: Send a legal notice. You can then approach and file a suit for partition under CPC;

4. Does the law of right to preemtion apply here?

Answer: Yes it does since the property forms part of the ancestral property;

5. I read somewhere that a coparcenary ancestral property cannot be gifted or donated without the consent of the other co-owners. If it's true then how can I challenge him?

Answer: You can first send legal notice and then file a suit for partition. Get injunction and stay orders against sale to third party.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

If it is joint property then he needs to take permission but if the property is partitioned then he can give it to anybody he wishes.

You can approach court for cancellation of that deed on the basis of not obtainment of your permission and not giving you preemption right.

As the property is undivided law of preemption can be applied here.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

1. If he is entitled to that share in the property, ,he can very well transfer his share of property to any one of his choice as per his desire.The donee or the beneficiary can partition the property with the co-sharers and have his share of property subsequently.

2. He cannot mention the particular portion as his share of property unless there was a proper partition.

3. You cannot take any action except a partition deed.

4. No, law of preemption cannot operate until there is an agreement to this effect

5. You have been misinformed about it.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

1. The co-owner is free to gift his share in the property to anyone he desires albeit the donee cannot get the possession of any part of the property unless the property is partitioned. To this end the donee can file a suit for partition in the civil court and seek separate possession of his share, whereupon the court will order division through metes and bounds.

2. In an undivided property no co-owner can claim to be the owner of a specific portion of the property. The office cannot be claimed by him as a matter of right and, therefore, the donee cannot claim to have the office gifted to him.

3. You should file a suit for partition and seek injunction to restrain the donee and also the donor i.e your brother from creating third party rights in the property during the pendency of the suit for partition.

4. Preemption does not apply here.

5. Even ancestral property can be gifted by the coparcener to the extent of his share.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Hi,

The donation/gift can be done without your knowledge but you may continue enjoying the tenancy. The deed may be cancelled on the basis on some facts. You may challenge the same too.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. No he can not.

2. No undivided share can be sold by one person.

3. File a suit for cancellation of the sale deed.

You may go ahead and challenge the sale deed, you have all the rights to do the same. Get in touch with a local lawyer at the earliest.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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