• Gift deed without execution of WILL.

We had a undivided share of 50 Cents of land belonged to my late grand father. 

My cousin brother secretly register a gift deed last year, gifting that land on his wife name .

I procured the certified copy of the gift deed, where apparently he claims that my grand father had privately executed a will to him 25 years back and he is now gifting that land to his wife. 

The agreement didn't have any copy of will . From encumbrance certificate looks like ownership of land directly changed from my grand father name to his wife's name. We in our family are sure that my grandfather has ever has signed such will to his grandson with my uncle and father being alive. My uncle is now decessed. 


My questions
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If will was ever written , wouldn't the ownership land be first transferred to my cousin brother's name by execution of the will ? 

Can sub-register overlook this and register this Gift deed without the Will ?

What steps can be taken to curb this illegal transaction. Should we complain at district registrar.
Asked 6 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu

You may file a case for cheating and forgery against your cousin. Apart from filing the criminal case also file a civil case for challenging the forged entries in the revenue records.

Mohammed Mujeeb
Advocate, Hyderabad
8459 Answers
3 Consultations

4.5 on 5.0

1) file suit to set aside gift deed 

 

2) seek injunction restraining sale of property by cousin wife

 

3) file suit for partition for division of property by metes and bounds 

 

4)if any will was executed property would have to be mutated in name of brother then only he could have executed gift deed 

Ajay Sethi
Advocate, Mumbai
63821 Answers
3882 Consultations

5.0 on 5.0

Yes file a suit.for.cancellation for gift and further for partition if there is any will he has to bring same on record.

Yes land needs to be first transferred to brother then to wife. Name.of both is required in records.

See there may be any discrepancy in registration.

Suit is best option at this stage to file everything will come on record.

Shubham Jhajharia
Advocate, Ahmedabad
17092 Answers
68 Consultations

5.0 on 5.0

1. The gift deed has not basis and is a sham deed. Since the Will was not never proved , the gift deed on the basis of an imaginary Will can not become operative.

2. The registrar mostly concerned about the stamp duty and not the title of the deed.

3. So you can file a suit for declaration that the gift deed be decreed as null and void and not binding upon the legal heirs of your grand father.

Devajyoti Barman
Advocate, Kolkata
17130 Answers
246 Consultations

5.0 on 5.0

1. If at all WILL was executed by your grandfather, then it had to be his self acquired property and not ancestral property. In case the property were to be ancestral property, then the WILL executed by your grandfather had to be to the extent of only his share in the property. In the alternate situation, if the property were to be your grandfather's self acquired property, then it will be within his right to have executed the WILL in favour of anyone, including your cousin.

2.  The property has to be first transferred to the beneficiary named in the WILL and later on only the beneficiary after becoming the owner of the property can gift it to anyone, including his wife.

3.  The Sub-registrar, after getting the identity of the Donor and Donee, can register the Gift Deed. The transfer of the property to the beneficiary through WILL happens when the death certificate and a copy of the WILL is submitted to the revenue authorities ( if the property is in Bangalore, it's BBMP ), alongwith a prescribed application form . If it's an agricultural property through RTC in the Tahasildar's office.

4.  You can represent to District Register/ and or revenue authorities regarding the mischief, if you think so.

5.  You can also bring injunction for the property and also prevent the illegal transaction by publishing a public notice.

 

 

 

 

Shashidhar S. Sastry
Advocate, Bangalore
2032 Answers
137 Consultations

5.0 on 5.0

Yes, you are right but the problem is that even if the Will is enforced, there can be no registration on the name of the beneficiary, hence you can challenge the Will itself especially if it was an unregistered will, the transfer of property from his name to his wife's name can be sought to be cancelled based on the ingenuineness of the Will.

 

Sub-registrar may not have time to look into the entire details of the documents being registered by him.

 

You cannot get any relief from the registration department, you may have to approach  civil court only for relief and remedy

T Kalaiselvan
Advocate, Vellore
53783 Answers
651 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that there has been number of facts which have been overlooked by the registrar resulting unit grave injustice.
  2. I advice you to file a suit immediately for the cancellation of the gift deed on the ground of fraud being done on you. Also include registrar office as party in the suit.
  3. It is the clear case of fraud sir, you need it act as son as possible, but don’t forget to request in the suit to give direction to no to further execute any more transaction with respect to the suit property.

Sanjay Baniwal
Advocate, South Delhi
4511 Answers
9 Consultations

5.0 on 5.0

Dear client

Land can directly be transfer on the basis of gift deed. No such trite rule but check if really there is some WILL or forged by your cousin. You can file criminal complain.

Yogendra Singh Rajawat
Advocate, Jaipur
11289 Answers
11 Consultations

4.6 on 5.0

Dear Sir

My answers are as follows

1, If will was ever written , wouldn't the ownership land be first transferred to my cousin brother's name by execution of the will ?

Ans Objections to be filed and stay has to brought from civil court to stop changes.

2, Can sub-register overlook this and register this Gift deed without the Will ?

Ans Yes, the contents of the documents may  not  be looked in to by the Sub Registrar and he is manageable.

3,What steps can be taken to curb this illegal transaction. Should we complain at district registrar.

Ans Get a stay order from the Civil Court by filing suit.

Kishan Dutt Kalaskar
Advocate, Bengaluru www.kishanretiredjudge.com
4167 Answers
102 Consultations

5.0 on 5.0

01. If Will is there, straight away he can transfer the property to anyone.

02. Without Will, Registrara cant register.

03.Immediately make a complaint to DR and make encumbrance on the property before it gets sell to thrid party. You can challenge on the part of will of your Grand father.

G Suresh
Advocate, Chennai
387 Answers
3 Consultations

4.9 on 5.0

1. You have to challenge both the will purported to be executed by the grandfather and also the gift deed in the civil court. Also seek injunction to restrain your cousin's wife from creating third party rights on it,

2. If there was a will in favour of your cousin then on the coming into operation of the will he became the absolute owner of the property, whereupon he was free to gift it to anyone he desired.

Ashish Davessar
Advocate, Jaipur
26033 Answers
763 Consultations

5.0 on 5.0

Court fees is state subject and varies from state to state 

 

2) it would depend upon market value of property 

Ajay Sethi
Advocate, Mumbai
63821 Answers
3882 Consultations

5.0 on 5.0

ANDHRA PRADESH COURT FEES AND SUITS VALUATION ACT, 1956

26. Suits for injunction :-
In a suit for injunction-
(a) where the relief sought relates to any immovable property, and where the
plaintiffs title to the property is denied, fee shall be computed on one-half of the
market value of the property or on rupees two hundred, whichever is higher;
(b) where the relief sought relates to the plaintiffs exclusive right to use, sell, print
or exhibit any mark, name, book, picture, design or other thing and is based on an
infringement of such exclusive right, fee shall be computed on the amount at which
the relief sought is valued in the plaint or at which such relief is valued by the
Court, whichever is higher;

Kishan Dutt Kalaskar
Advocate, Bengaluru www.kishanretiredjudge.com
4167 Answers
102 Consultations

5.0 on 5.0

It is always better to approach a local advocate who is practising on civil side to know about this. The court fees act is a state legislation and naturally it differs from state to state. Hence it is difficult to answer your query correctly.

G Suresh
Advocate, Chennai
387 Answers
3 Consultations

4.9 on 5.0

Court fees depend on the market value of the property  varies from state to states. 

Mohammed Mujeeb
Advocate, Hyderabad
8459 Answers
3 Consultations

4.5 on 5.0

See for the court fee you should consult the local advocate and can meet court officer for same it is state wise.

Shubham Jhajharia
Advocate, Ahmedabad
17092 Answers
68 Consultations

5.0 on 5.0

The court fee part of your query can be answered by only a local lawyer as court fee slab is not uniform across India.

Ashish Davessar
Advocate, Jaipur
26033 Answers
763 Consultations

5.0 on 5.0

the Will needs to be first proved by filing a probate petition

if probate is not applicable in your state then the other legal heirs of grandfather are required to give their NOC to transfer the land to the beneficiary's name as stated in the Will

once the beneficiary's name is mutated in land record, he becomes owner

only thereafter he can transfer the land by a gift deed

a civil suit needs to be filed by legal heirs of grandfather seeking cancellation of registration of gift deed, declaring it null and void and for injunction 

court fees for above is quite nominal

however if the legal heirs claim their share in the land and also possession, the court fees as per present market value has to be paid

Yusuf Rampurawala
Advocate, Mumbai
4161 Answers
19 Consultations

5.0 on 5.0

Court fee is state subject and it varies from one state to another.

You may clarify the same from local bar association.

 

T Kalaiselvan
Advocate, Vellore
53783 Answers
651 Consultations

5.0 on 5.0

You can challenge the said gift deed and cancel the same in court by filing a suit. You can also file a case of cheating and forgery against them.

Prashant Nayak
Advocate, Mumbai
10308 Answers
16 Consultations

4.8 on 5.0

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