• Gift Deed - property transfer

Hi,
We are total five siblings (3 brothers and 2 sisters) belonging to a Muslim Family. All are married and settled.
We have a building which was built by Grand father and we brothers are staying there on each floor. My Grandfather has 3 daughters and 1 son (my father). This building came to my father by inheritance.

Due to my dad sudden death, there was no will created. We all (brothers, Sisters and mother ) had made our eldest brother the legal heir of this building 15 years ago for smooth legal operation, a Heirship Certificate issued by the IInd Joint Civil Judge, Senior Division and he is recognized as heir and owner of the property.

I am staying in a flat under the same said building with my mother and I would like to get the registration done now as I don't have any legal document of the same flat where I am currently staying at. I want to know can I ask my brother to make a gift deed which can be registered and then I can become the owner of the flat. Will this gift deed be legal and valid? Can my two sisters and other brother challenge this gift deed?
Asked 1 year ago in Family Law from Thane, Maharashtra
Religion: Muslim
Well if is not clear how you made your elder brother heir of the  whole building as he along with you is co-shareer only.
 Now for  smooth recognition of share of all if you execution of a deed of  partition ant registering is best suited to all of you.
Devajyoti Barman
Advocate, Kolkata
5217 Answers
54 Consultations
4.9 on 5.0
1) On your father demise property would devolve on all legal heirs as per your Muslim personal law 

2) nether you nor other legal heirs have executed deed of relinquishment wherein your brother becomes absolute owner of the building 

3) mere issue of legal heir certificate would not make your brother absolute owner of the building 

4) your brother cannot execute gift deed in your favour for flat in building 

5) it can be challenged by your sisters on grounds that they have not relinquished their shares in the building 
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
5.0 on 5.0
1) sale of flat to you should be with the consent of all legal heirs 

2) consideration should be clearly mentioned 

3) don't go in for gift deed 
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
5.0 on 5.0
Sale deed is better option.
Devajyoti Barman
Advocate, Kolkata
5217 Answers
54 Consultations
4.9 on 5.0
This is an ancestral property inherited by your father from your grand father, who also dies intestate. Since, the heirship certificate has been issued by the II Joint Civil Judge, Senior Division in favor of your brother, it appears that your mother, all brothers and sisters might have relinquished their respective stake in the property through the relinquishment deed in favor of elder brother. For all purposes your brother is the owner of the said property and he has a right to transfer any part of the property through sale deed or gift deed as the case may be in your favour or to any of your siblings. 
Rajinder Kumar
Advocate, New Delhi
68 Answers
4 Consultations
5.0 on 5.0
1. If the ownership of the building constructed by your grandfather has been transferred to your brother he can convey the ownership of the flat to you by executing a sale deed or gift deed in your favour. 

2. Your other siblings can challenge the gift deed if your brother does not have the legal authority to convey the ownership of the flat to you. Since we have not perused the court order we cannot comment on the nature and magnitude of rights which have accrued to your brother.

3. If you go for a sale deed the stamp duty will have to be paid whereas in case of a gift deed among the blood relatives there is no stamp duty (to the best of my knowledge) in Maharashtra.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
1) sale deed for consideration is the best option .

2) tomorrow any legal heir moves court it can be shown that flat was sold for consideration as duly reflected in sale deed . 

3) it is your case that brother is owner of property where is question of release deed then by other legal heirs 
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
5.0 on 5.0
1, A release deed and gift deed will produce the same effect i.e transfer of ownership.

2. In case of a sale deed it has to be accompanied by consideration.

3. You have to take the call.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
Instead of gift deed or sale deed or release deed, all you siblings can mutually agree to family settlement and partition the properties and register the partition deed  which will make each one the owner of the schedule of properties so allotted to each individual in the said partition deed, this deed will become the document for all future transactions in respect of the individual properties. 
The mutual agreement will include all aspects of the properties i.e., the proportionate share to each individual or anyone to be compensated with money in lieu of his or her share in the properties etc, this can be achieved by everyone cooperating and deciding together. This will be easy method and cost saving as well. 
T Kalaiselvan
Advocate, Vellore
14046 Answers
127 Consultations
5.0 on 5.0
1. How did you make your elder brother as the sole legal heirs when there are several legal heirs of your father?

2. What document did you sign for making him the sole owner of your father's property?

3. Was it a POA executed and registered by all other brothers and sisters?

4. If not, then your brother can not be the sole owner of your father's propety foer ahich your sisters can certainly lodge their claims if your brother executes and registers a Gift Deed in your favour,

5. If your elder brother had the POA executed and registered by all his siblings then he is entitled to register the said gift Deed in your favour. 
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. If your brother has got POA signed by all his siblings then he can convey the title of the said flat to you,

2. It is convenient to register a Gift Deed in your favour.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. If all your brothers and sisters agree, you can get a Settlement Deed executed and registered in your name,

2. This will be the best way to get the ownership of the flat registered in your name.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0

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