Your brother would be absolute owner of land only and not the shopping complex built over it
2) you can in partition suit claim share in the shopping complex constructed by your deceased father
Regarding registered gift deed
I filled suit in 2002 for partition of my father intestate property. One of those properties my father given registered gift deed to my brothers in 1993.In that property my father build shopping complex in 1992,there was an aversion that land might taken by highway for road extension.For the same land survey no. highway taken over land for extension,for that my father received compensation in 1990.After receiving compension he build shopping complex in remaining land.In the aversion of highway would again take remaining land since he also received compensation for earlier highway takeover ,so he gift deed the remaining land to my brothers without mentioning the shopping complex in the said survey no. Can i claim right over the super structures of shopping complex.And my father in gift deed clearly mentioned only ground would be transferred (without mentioning superstructure build 1992) in the gift deed and also made condional clause in the gift deed that his sons has to do Hindu ritual rites during his death.One of brother didn't do my father last rituals since he converted to Christian.Please my clarify right over the property. Suit in the stage of argument my brothers accepted shopping complex built by my father during cross examination and building plan approval and shop taxes in my father name from 1992 to till date.
Asked 6 years ago in Property Law
Religion: Hindu
13 Answers
Whatever attach to land is part of land and cannot be claimed separately. What mention in gift deed ? land or ground floor ? Conversion into Christianity and not performing last rituals is separate issue. If failed to perform last rituals for whatever reason, condition of gift deed not fulfilled and render gift incomplete.
Now inheritance will open acc. to intestate succession. You have equal right.
Yes you can claim the same as you have right
1. Your opponent will claim that since the land has been gifted to him, the complex constructed thereupon is also belongs to him.
2. Your argument should be that knowing very well that there has been a shopping complex constructed upon the said land, your late father did not mention the same in the said gift deed keeping it to be inherited by his sons excluding him who did not perform thye Hindu retuals after his demise.
3. So, in the above event, all your Hindu brothers can claim equal share of the said shopping complex.
1. Challenging or Setting aside a Gift Deed is a literally impossible task, EVEN if the Gift Deed mentions only the Land and not the appurtenances alongwith it.
2. Typically since the Gift Deed was executed in 1993, WHEN already the super structure was existing, the law would perceive the entire (Land + Structure) was Gifted. Further the courts would interpret it in the same way.
You cannot claim the rights in the building built over the land which is gifted to your brother.
your brother is absolute owner of said property. you cannot claim any rights in said property.
This is a complex question.
Your father transferred his property by a gift deed whereas you contend that he transferred only the land and not the super structure built on it, so you state that the super structure is intestate proeprty and claim rights in it as one of the successors in interest.
You can proceed on the same line and since it is in the arguments stage, you may attach some relevant citations to support your claim. let the court decide, if you are aggrieved then you can reserve the option to prefer an appeal before the next appellate court.
Thank you sirs., for all your opinions.My father didn't made any of his property settlement to his legal heirs except this one.My father made gift deed to my brothers only because of aversion national highway might take the said property for road extension .That's why my father clearly mentioned in the gift deed in 1993 that "EMPTY LAND "only belongs to my brothers even though building was build on 1987(hiding the fact building was in said land in the gift deed).His intension was., if even though national highway take over the said property my brothers will get compensation for land and he (my father)will get compensation for shopping complex - super structures.In cross examination my younger brother aceepted the fact the complex was build by my father in his own funds in 1987 got building approval in his name before the gift deed made in 1993.And he also accepted he only done my father last rituals rites not done by elder brother .And the same fact was accepted by elder brother in his cross examination that he didn't did last rituals to his father according hindu customs because he converted to Christianity.My younger brother accepted to divide the said property and shopping complex equally among the all legal heirs since father didn't given right over shopping complex in his written statement.Only my elder brother protesting to settle the dispute.To be practical for the cost of building shopping complex in those days in said property my father can purchased 10 times bigger land in said price in 1987.How would be possibility for claiming right in the said property.This might be complex question as said by Advocate Kalaiselvan sir., since land was in my brothers name and superstructure in my late father name. Even though one of my young brother came forward to put end to litigation by dividing equally among all legal heirs but my elder brother doesn't want to resolve the dispute.Please provide your valuable advice ..Thank you
Asked 6 years ago
File suit for partition for division of shopping complex by metes and bounds
2) seek injunction restraining sale of complex by your brothers
My suggestion is that you may go ahead with the proposed partition suit seeking partition in the entire property ignoring the fact the land was transferred to your brothers, let them claim the land as per the gift deed, now the second brother, though converted to other religion, is still entitled to a share as per the gift deed, the conditions recited in the deed will not be binding, hence if he is also claiming his share in the property, the pressure will mount on the agitating brother who will subsequently give in to to the proposed compromised partition.
Hence you may for the present take the other brother to your side and file a partition suit, wait and watch the developments.
Partition suit will be ideal if mutual settlement is not possible. You can also seek injunction from court
Due to non fulfillment of condition of gift deed, gift become void. For completion of gift deed, last ritual would have done.
It will divide equally now. Leave the elder brother rest divide among themselves leaving his share.
1. What does your elder brother want now?
2. As per law the building constructed upon some one's land is owned by the owner of the land.
3. However, in the instant case, when the gift deed for the land only was registered in favour of your other brothers, the complex was already constructed thereupon.
4. So, based on the above ground, you are entitled to equal share of the complex being one of the legal heirs of your ffather since deceased.