• Gift settlement deed of whole property to only one son out of other heirs

We belong to Hanafi Muslim Family, Initially Natham Poramboke Patt of 3 cents was assigned by TamilNadu Govt. to my father, Balance of 2.5 Cents was advised by govt. to pay Rs.4076 and get full 5 1/2 Cent Patta in the year 1976. But, my Father had no funds to pay and obtain the 2.5 Cent and died interstate in 1997. Later all Revenue Doc's Mutated in my Mother Name. Elder son supported with money and she paid to govt. and applied to issue 5 1/2 Cent full Patta on her Name by supporting all revenue doc's mutated on her name. Based on the Name of my Mother in all Revenue Doc's Thasildar has issued full patta for 51/2 Cents in my mother name in 2001. 
Question:
1. Is she the absolute owner of the Property?
2. Is she eligible to gift her whole property to one son when she has a total of 6 heirs?
3. Does the full Patta make her the absolute owner or is there any scope of inheritance law?
Asked 17 days ago in Property Law
Religion: Muslim

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12 Answers

Mother is not absolute owner of property 

 

2) she cannot gift property to only one be son 

 

3) on her demise property would devolve on her legal heirs as per Muslim personal law 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

1. As per law, out of 100% share, share of mother will be 12.5% only . and the remaining 87.5% will be distributed between sons and daughters. 

- Hence she cannot be single owner of the property left by your father 

- Further the revenue record is not a title document 

2. No , As per Muslim Law, A Muslim is allowed to give away his entire property, whether the property is self acquired or ancestral, during his lifetime by gift, but only one-third of the total property can be bequeathed by WILL.

- Hence , she cannot gift whole property to one son 

3. All the legal heirs having right to claim. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

Basically some portion of the landed property is assigned land, to which the legal heirs are entitled to their legitimate share as the allottee is reported to have died intestate. 

Therefore the wife of cannot claim entire property of the deceased as her own property even though she had transferred the patta to her name. 

Therefore she cannot transfer the entire property to anyone of her choice.

She can very well transfer her own share of property in favor of anyone of her choice,  there's no restrictions on that. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Dear clients,
      Who can give Gift Deed. The owner of an immovable property can gift it to a relative or a third person. A gift is considered valid only if it is made voluntarily and without consideration.

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

1. Mother will have 1/8 th share of the property and the rest will be of children. 

2. She can only gift her share

3. No she will not be absolute owner of all property

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

1.  You say that though your late father was allotted 51/2 cents of land by the government, during his lifetime he was assigned only 3 cents. Further you sat that after his death the elder son paid the government dues and the patta for the entire allotment of 51/2 cents of land was issued in favour of your mother. Your mother is not the absolute owner for these reasons: 1) 3 cents belonged to your father as the original beneficiary; after his intestate death, this parcel of 3 cents should devolve upon his legal heirs as per the Hanafi law of inheritance: 2) As for the other portion of 21/2 cents, the elder son may claim as he only paid the dues. The issuance of the patta for the whole parcel of 51/2 cents by the Tahsildar is not in order legally for these two reasons.

2. No, your mother is entitled only to her share of your father's estate as per the Hanafi law.. Even then she cannot gift more than 1/3 of her share to anyone.

3. Please see my reply to Q.1.

 

Swaminathan Neelakantan
Advocate, Coimbatore
870 Answers
17 Consultations

4.9 on 5.0

if mother was not absolute owner of property she could not have executed gift deed in favour of elder son 

 

2) other co sharers have not gifted or relinquished their share in property 

 

3) mere signing as witness does not imply that they cannot claim share in property 

 

 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

- If other legal heirs not executed a registered released deed for leaving their respective share in the property in favour of one , then the said gift deed is not valid legally , and only signing as a witness is not enough proof for releasing the share. 

- However , if there is an family settlement , then the gift deed cannot be revoked. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

The cosharers have not legally relinquished their rights in the property neither they had executed a registered release deed to relinquish their rights in the property.

Therefore, by merely being an attesting witness to the gift deed, they cannot be said to have consented to the gift deed or can be presumed that that they had relinquished their rights in the property just by being a witness to the said gift deed.

They can claim that they do not know the contents of the gift deed and it is not mandatory for the attesting witness to know the contents of the documents that they have signed as witness. 

Therefore the claim made by them for a legitimate share in the property is maintainable, if it is not then the court would not have taken the case on its file. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

First of all, the patta issued by the Tahsildar in favour of your mother for the entire property of 51/2 cents after the death of your father is not legally tenable. Your father was legally entitled to 3 cents allotted during his lifetime. The patta for the remaining 21/2 cents should have been issued only in the joint names of all the heirs surviving your father at that time. The gift settlement of the entire property of 51/2 cents in favour of the elder son also is, therefore, not tenable in law. All the eligible heirs have to file a title suit at the district court for setting aside the patta as well as the gift settlement, making the Tahsildar, the mother and the elder brother as the opposite parties. The mere act of witnessing the gift settlement deed shall not preclude the heirs from exercising their rights as legal heirs.

Swaminathan Neelakantan
Advocate, Coimbatore
870 Answers
17 Consultations

4.9 on 5.0

Dear Client,

If the registered witness has given up her rights in the property by signing the gift deed as a witness then he/she can't claim the property.

However, if she proves that such signature to the deed had been done under some undue influence and without his/her will, then such registered witness can claim the property.

Thank you.

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

If it's her self acquired property then it's eligible otherwise it's void

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

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