• Gift deed on joint family property after partition

Dear Sit,
My grandfather and his brother living together and had 20 acres of agricultural which includes my grandfather self purchased property and his father's inherited property. In 1969 my grand father got 10 acres of land after registered partition. My grandfather died in 2005
My father (76 yrs) is only son to my grandfather, so by inheritance all 10 acres of land comes to my fathers name. We are 4 son and 1 daughter to our father (all married and settled individually). So, my question is as below
1. Is this 10 acres is Ancestral property to my father or self acquired property?
2. Can he make a gift deed to all 10 acres to one son? if Yes, is other son and daughter question in court or they have birth rights?
3. Is our sister also have rights in this property?
4. My father has bank loan on this property, but bank not giving NOC to make a gift deed. So, still my father can make a gift deed to one son even if bank do not give NOC?
5. What is the procedure for making gift deed as other sons and daughter not taking care of parent?
Asked 9 months ago in Property Law
Religion: Hindu

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12 Answers

1. After getting the share in the ancestral property , that will be considered the self acquired property of your grandfather . 

- Further, after his death , being the only legal heirs , that property become the self acquired property of your father.

2. Yes, during his life time , your father can gift that property to anyone as per his own wish , and none having right to claim , and only after his death intestate , others can claim right. 

3. Only after the death of your father intestate , she having her right. 

4. Since, this property has been mortgaged with the bank , then NOC from bank is necessary for transferring the property even a gift deed

5. Registered the Gift deed from the office of Registrar . 

Mohammed Shahzad
Advocate, Delhi
8461 Answers
92 Consultations

5.0 on 5.0

Dear Sir,

That 10 Acres are not ancestral property of your father and he can't give gift to any of the children. That property will be ancestral to all the children of your father. In absence of NOC by bank, the gift deed will be invalid. 

Ganesh Singh
Advocate, New Delhi
6629 Answers
16 Consultations

4.5 on 5.0

1) it is not ancestral property 

 

2) father can execute gift deed in favour of one son without consent of his other children 

 

3) on father demise intestate your sister will ha e equal share in property 

 

4) father cannot execute gift deed till loan is repaid 

Ajay Sethi
Advocate, Mumbai
84881 Answers
5611 Consultations

5.0 on 5.0

Loan has to be repaid first then gift deed executed by father 

Ajay Sethi
Advocate, Mumbai
84881 Answers
5611 Consultations

5.0 on 5.0

1. The succession opened in 2005. So Hindu Succession Act will apply and hence the property is the self acquired property of your GF. On his demise your father inherits that property as a self acquired property. 

2. Father can make gift deed in favour of one son. 

3. They have. But only after your father's demise as his legal heirs. If the property is gift transferred in your father's lifetime then the sisters cannot claim 

4. What is the reason of the bank for not giving NOC? 

5. A gift deed can be registered in favour of the son subject to NOC of bank 

Noc of bank is required as property is mortgaged with the bank. You can clear the loan before gift deed and the bank will release the property from its charge. Then your father wont need any bank NOC 

Yusuf Rampurawala
Advocate, Mumbai
6559 Answers
59 Consultations

5.0 on 5.0

- Yes, after clearing loan , the bank can issue NOC. 

- Gift deed is a transfer of the property without consideration. 

Mohammed Shahzad
Advocate, Delhi
8461 Answers
92 Consultations

5.0 on 5.0

1. If the same Sy. No. having an extent of 10 acres of land which your great grandfather owned and the same Sy.No. your father has inherited, then it can be considered as Ancestral Property to you and your siblings. However, if your father has inherited your grandfather's self acquired property of 10 acres, then the property will have the characteristics of self acquired property in your father's hands.

2.  Based on the above, if it were to be a self acquired property of your father, then it's his prerogative to deal with the property in any manner he likes, including gifting the property to anyone son or giving the property to all his children equally, including his daughter. In that case, your father will be well within his rights to give the property to only one son.  The other siblings, your three brothers and one sister can question this in court but being this property treated as self acquired property of your father, your other brothers and a sister will not have any birthright in your father's self acquired property during your father's lifetime.

3.  If using the yardstick explained under point (1) here and if it were to be treated as self acquired property, then your sister will not have any right.

4.  Your father has to obtain NOC from Bank before gifting the property to anyone son, as there has been charge created on the property by Bank and the Bank will have first charge over the property and your father would have surrendered his rights over the property till the housing loan is discharged. Still if your father persists to execute a registered Gift Deed in favour of his one son, during the pendency of loan, the Donee will not get absolute title to the property.

5. If it were to be your father's self acquired property, he will be free to execute a registered Gift Deed to anyone son. When the charge is created on the property, the Mortgagor has to obtain NOC or the Mortgagor has to clear the loan.

Shashidhar S. Sastry
Advocate, Bangalore
3867 Answers
234 Consultations

5.0 on 5.0

  1. 10 acres inherited by father is ancestral property not his self acquired property.
  2. He cannot make gift deed in favor only one son. Other have birth right in it and can question the gift in court.
  3. Sister have equal right in the property with brothers.
  4. Even loan is paid, father cannot be gift the property to one son.
  5. A gift has to drafted and presented for registration and signed by donor and donee. But a gift deed of only one son is open to challenge.

Ravi Shinde
Advocate, Hyderabad
1571 Answers
19 Consultations

5.0 on 5.0

1. The property inherited by your father becomes his own and absolute property. 

It will not fall under the ancestral category. 

2. Since your father is the absolute owner of the property with clear and marketable title on his name,  he is the authority over the entire property. 

He can transfer the entire property to anyone of his choice ignoring others. 

His children do not have any rights over the property at least not during his lifetime. 

3. Nobody has any rights over the property. 

4. The bank can rightly refuse to give NOC till the entire loan amount is fully discharged. 

He cannot transfer the property by executing a registered gift deed during the subsistence of a mortgage loan against the property. 

5. Let him repay the entire loan amount first. 

T Kalaiselvan
Advocate, Vellore
74999 Answers
1257 Consultations

5.0 on 5.0

The bank may not permit the transfer of property from the borrower to a third person during the subsistence of mortgage loan against the property. 

T Kalaiselvan
Advocate, Vellore
74999 Answers
1257 Consultations

5.0 on 5.0

A. 10 Acres of land belongs to your grand father in terms of registered Partition Deed shall be treated as Joint Family Property. In order to claim as it as ancestral property that it must have four generation without interruption. 

 

B. When your father died intestate (without execution of will) that property belongs to him shall be distributed equally between all the class I legal heirs i.e, your father mother, wife and children (Male and Female) under Section 8 of the Hindu Succession Act. However, in your case as the property nature is joint family property that your sister has equal share over the property by birth with male children. It cannot be alienated through Gift Deed towards one son. Even your father executed a Gift Deed in favour of one son it will be voidable transactions. 

 

C. As I pointed out above, your sisters are having equal share over this property. 

 

D. Execution of Gift Deed will not clinch the ownership of the Donee. Hence, there is no question arises towards execution of Gift Deed at this point. Moreover, check as to whether your father has executed any mortgage deed and conditions of the Deed towards alienation of property during the course of mortgage loan. 

E. Please drop the idea of execution of Gift Deed to avoid litigation in future. Execution of Partition Deed through registration procedure is the best option. 

B.T. Ravi
Advocate, Bangalore
943 Answers
96 Consultations

5.0 on 5.0

Dear Sir/Ma'am,

  1. The ancestral property must belong to four generations or we can say that ancestral property must be continued for four generations and passed down from generation to generation. The ancestral property should not be divided by the members and when the division occurs, the property becomes the acquired property. As the property was divided among the brothers and was not kept in joint family, it becomes self acquired.
  2. If the father makes gift deed to only one son, the others approach the court to claim their share.
  3. According to the Hindu Succession (Amendment) Act 2005, daughters have the same right as sons to their father's self-acquired property, if he dies intestate, that is, without a will. The property will be divided equally among all legal heirs.
  4. If your father wishes to gift any such property under loan, an NOC from the bank is mandatory.
  5. A father can disinherit his son from his self-acquired property only, and not from his ancestral property. Self-acquired property refers to property that is not inherited but is self-made out of one’s own funds and resources. Property acquired through a brother or an uncle may also be categorised as self-acquired. A property acquired through a gift deed or through a will is also self-acquired. 

Anik Miu
Advocate, Bangalore
3074 Answers
31 Consultations

4.9 on 5.0

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