• Right of property when divorce proceedings are underway

My father made a second marriage in 2008 and had a son out of the marriage. the age difference between the two is almost 30 yrs. due to various reasons now the divorce proceedings are under way. his second wife has been staying in our house since 2008/09 which was gifted to my wife by my father in 2008 and it remains in my wife's name till date. in between my father made a will in 2015 under pressure from his second wife wherein he says that the house which he has already gifted to my wife through a gift deed be given to his second wife, however the will is not registered in the court. so i have the following questions:-
1. can his second wife has the right to stay in this house?
2. can she claim that house based on the will made in 2015 by my father?
3. can she be evicted from the house?
4. what are her rights in the present circumstances?
Asked 7 days ago in Property Law
Religion: Hindu

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15 Answers

1. If your wife has been gifted the house by your father, by registering it in the jurisdictional Sub Registrar's Office, then in that case your father's second wife do not have the right to stay in the house.

2. Your father's second wife can't claim the house by virtue of WILL executed by your father, since your father had ceased to be the owner of the house when once it has been gifted to your wife.

3.  If your wife's name is in the title of the property, you may evict your father's second wife.

4.  Your father's second wife is entitled to matrimonial home and she has to be provided a matrimonial home, which can be a rented home also.

Shashidhar S. Sastry
Advocate, Bangalore
3613 Answers
207 Consultations

5.0 on 5.0

1.  When the house has already been gifted to your wife through a registered Gift Deed by your father and the gift has been accepted by your wife, your father is no more the owner of the house and your wife is the present owner of the house.

2.  Gift takes immediate effect and the transfer of property from the Donor to the Donee takes place immediately after the Donee accepts the gift, that too during the lifetime of the Donor. Whereas the WILL takes effect after the lifetime of the Testator.

3. Since your father is no longer the owner of the property as he has already gifted the same property to your wife way back in 2008 itself, his execution of the WILL indicating his second wife as the beneficiary is legally invalid.

4.  Let your father convince his second wife of the factual position and resolve the issue.

Shashidhar S. Sastry
Advocate, Bangalore
3613 Answers
207 Consultations

5.0 on 5.0

Dear Sir, 

1. You Father's second wife does not have the right to stay, if the house gifted has been registered and gift deed has been executed. 

2. once the house has been gifted, your father is no longer the owner. in such a case, she cannot claim the house based on a will. 

3. you have the right to evict her in case your wife's name has been registered in the title of the property. 

4. she is entitled to a matrimonial home and maintenance from your father. 

 

Thank You 

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Anik Miu
Advocate, Bangalore
1516 Answers
18 Consultations

5.0 on 5.0

Your wife can file suit for eviction against second wife 

 

2) your wife is absolute owner of property once registered gift deed is executed in her favour 

 

3) will takes effect on death of testator and has no effect in present case as wife is absolute owner of property 

Ajay Sethi
Advocate, Mumbai
82671 Answers
5249 Consultations

5.0 on 5.0

Your wife should file suit for eviction of second wife of father as she is absolute owner of property 

Ajay Sethi
Advocate, Mumbai
82671 Answers
5249 Consultations

5.0 on 5.0

From your question I gather that second marriage is after the demise of your wife. As a second wife after death of first wife her marriage is valid and legal with all rights to wife. She has right to reside in house and she with her son will also inherit property of father. But the house which  is gifted to your wife is her absolute property. A property gifted cannot be taken by the donor. A gift is irrevocable. Father and step mother can reside as your parents and step brother can reside in the house as son of father but after them the house is your wife’s property.

Ravi Shinde
Advocate, Hyderabad
1007 Answers
8 Consultations

5.0 on 5.0

As the house is gifted to your wife, will have no meaning. Will is operative only after the death of testator but don’t go into that your stand is a property is gifted is gifted, it cannot be taken back by any document.

Ravi Shinde
Advocate, Hyderabad
1007 Answers
8 Consultations

5.0 on 5.0

Dear Sir

No Authority Can Cancel Registered Documents: SC [Read Judgment]

The Supreme Court in Satya Pal Anand vs. State of M.P, has held that once the document is registered, it is not open to any authority, under the Registration Act, 1908, to cancel the registration. In the instant case, an application was moved by a person before the Sub-Registrar (Registration) calling upon him to cancel the registration of extinguishment deed executed by the Society cancelling an allotment of plot. Aggrieved by rejection of his application, on the ground that Sub Registrar has no jurisdiction to cancel the registration of a registered document in question, he approached Inspector General (Registration), but in vain....
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Essential Elements Of Gift

The term gift denotes a voluntary transfer of real or personal property to another made without any particular cause and without consideration.  The person who gives the gift is called donor and the one who receives the gift is called donee.  A gift is generally made out of affection, respect, charity, or like impulses, and not from any moral or legal duty.  Gifts enjoy tax exemption and a payment made without conditions and out of respect or charity or in anticipation of economic benefits is generally characterized as gift under tax law.  A charity will normally issue a tax receipt for the gift amount and it can provide a tax receipt for gift- in -kind also. 

A gift can be made during the donor’s lifetime (inter-vivos) or by will (testamentary). The two principal categories of gifts are inter vivos gifts and causa mortis gifts.  An inter vivos gift is perfected and takes effect during the lifetime of the donor and donee and is irrevocable in nature.  A gift causa mortis is one that is made in anticipation of imminent death.  This type of gift takes effect upon the death of the donor from the expected disease or illness and may be revoked until the donor’s death.  There is a third category called testamentary gift made by will.  It operates to transfer ownership only subsequent to the death of the donor.

Essential elements of a gift include: capacity of the donor; intention of the donor to make the gift; completed delivery to or for the benefit of the donee; and acceptance of the gift by the donee.  A gift can be made either in the form of cash or a gift-in-kind.  A gift-in-kind means a gift of property other than cash and includes inventory, capital property, donations of real estate, stocks and bonds, and personal items.  A donor can make a gift to a registered charity or other qualified donee.  Services are not property and hence will not constitute the subject matter of gifts.  Gift should be given voluntarily, of one’s free will and the donor who makes the gift should transfer the full ownership and possession to the donee.  Generally a donor transfers property as a gift without expecting anything in return and donor cannot part with the gifted property in the name of a contract or court order.

The three elements which are essential to the making of a valid gift are delivery, donative intent, and acceptance by the donee.  The delivery of a gift is complete when it is made directly to the donee.  Delivery can also be made to a third party on behalf of the donee.  The third person can be the donor’s agent, bailee, or trustee.  In the case of delivery to a third party, delivery is deemed to be complete only when such person actually hands over the property to the donee.

A delivery may be actual, implied, or symbolic, and requires some affirmative act to take place.  For instance, A wishes to gift a cow to his daughter B.  The actual delivery takes place when A hires a person to bring the cow to B’s farm.  A symbolic delivery of a car, for instance can occur when the donor hands over the key of the car to the donee.  Delivery is complete only when the donor surrenders control of the property.  For example, an individual who expresses the desire to make a gift of a car to another but continues to drive the car whenever he or she wishes has not surrendered control of the car.

If the donor and donee reside in the same house, the gift need not be removed from the house and can be kept in the same house.  States do not require too many formalities to establish delivery and if it is proved that the donor relinquished all claim to the gift and recognized the donee’s right to exercise control over it, courts consider it as an adequate indication of a transfer by gift.  In the case of a gift to an infant or an insane person who does not have legal capacity to accept delivery, such delivery can be made to an individual who will hold it for such infant or insane person.

If the donee is out of the country at the time of making the gift, delivery can be made to someone else who agrees to accept the property for the donee.  However, if the individual accepting delivery is employed by the donor, it is presumed that the donor has not rendered control of the property and that delivery has not actually been made.  “The individual accepting delivery must be holding the property for the donee and not for the donor.”

The second ingredient of a valid gift is donative intent, which is inferred from the “donor’s words, the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor’s property as a whole, and the behavior of the donor towards the property subsequent to the purported gift.”

The intent must be present at the time the gift is made and is different from a mere expectation.  For example, if one person promises to give a house to an artist “someday,” the promise is unenforceable because there is no intent to make an effective gift at the time of the promise.

The third element for a valid gift is acceptance.  Acceptance means that the donee unconditionally agrees to take the gift.  It is necessary for the donee to agree at the same time the delivery is made.  The gift can, however, be revoked at any time prior to acceptance.

 

 

Kishan Dutt Kalaskar
Advocate, Bangalore
5897 Answers
297 Consultations

4.8 on 5.0

1. If the said gift deed is registered in your wife's name  then legally she is the owner of the property and it cannot be cancelled without getting a court order from your father .

- Further, without cancelling the gift deed a WILL having no value in the eye of law. 

- Hence, his second wife has no right to stay in this house 

2. No , 

3. Yes, your wife can file a Mandatory injunction suit before the court for evicting her .

4. Now fathers consent not needed, your wife should issue a legal notice to her for vacating the house , and if no response then she can file above said suit for taking possession of the house.

Mohammed Shahzad
Advocate, Delhi
7062 Answers
73 Consultations

5.0 on 5.0

-    Police is right, Its Civil matter.
They dont have any right to interfere without court order.

 

-    The said WILL have no power.
It is just a piece of paper having no value till your father is alive.
WILL have value only after death of testator.
Your father can make a new WILL at any time and cancel that WILL.
After that it will have value less than toilet paper.


-    Your wife is absolute owner of property after registered gift deed is executed in her favour.
Gift becomes complete after Donee (your wife) accepted the Gift and took possession.
Your wife have to file eviction suit against second wife.

Ankur Goel
Advocate, Bangalore
311 Answers

4.9 on 5.0

 If the property was transferred to your wife  by your father by a registered gift deed then the Will is not valid becseu there is no property to bequeath.

Your father's rights over the property has already been relinquished by the said registered gift deed, and the new owner of the property is your wife, by the virtue of the registered gift deed on her name.

Your father is no more the owner of that property hence his Will is not legally valid or maintainable even if it comes to force after your father's lifetime.

 

Therefore your father's second wife cannot claim any rights in that property, however if your father is lsio residing in theat property then he may claim residential rights in the mouse mentioning that it is her matrimonial home.

Therefore you may ask your father to shift his residence  to some other place away from this house after which your wife can issue a legal notice to your father's second wife to vacate the property that belongs to her, failing to respond or comply with the instructions, your wife can file a suit for ejectment to eject the unauthorised person who has illegally occupied the property.

 

T Kalaiselvan
Advocate, Vellore
72756 Answers
1110 Consultations

5.0 on 5.0

The police cannot interfere in this  since this is a civil matter.

However if your father is residing in some other place and he offers accommodation to her in that place, she has to vacate the property.

Will is invalid and not a title document especially during the lifetime of the testator.

She has no rights in the property.

She can be declared as an illegal occupant  and can even be termed to have trespassed into the house, provided your father is not residing in that house anymore.

Your wife has to initiate legal proceedings through civil court to eject her and also to give a complaint for criminal trespass.

You may discuss with an experienced lawyer in the local and initiate legal steps as suggested.

 

T Kalaiselvan
Advocate, Vellore
72756 Answers
1110 Consultations

5.0 on 5.0

A gift is irrevocable. Once he gifted the property to your wife he cannot go back and will it to anybody.

Rahul Mishra
Advocate, Lucknow
12649 Answers
31 Consultations

5.0 on 5.0

You should enter the house and live there. As per the gift deed the house is yours.

File a declaratory suit too.

Rahul Mishra
Advocate, Lucknow
12649 Answers
31 Consultations

5.0 on 5.0

1. Once your father had executed the gift deed in favour of your wife in 2008 the title to the house instantaneously passed from your father to your wife, and thereafter your father ceased to have any right, title or interest in the property. Consequently, he had no legal competence to make a bequest in favour of his second wife.

2. The remedy in the hands of your wife is to file a suit for declaration to declare the will made by your father as void.

3. In her suit she can seek consequential relief of evicting the second wife of your father from the house.

4. Police has rightly refused to intervene in the matter as the entire dispute is civil in nature.

Ashish Davessar
Advocate, Jaipur
30635 Answers
893 Consultations

5.0 on 5.0

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