Challenging a disputable Gift Deed
I am a coparcener of HUF family. It is consisting my Father (Kartha), Mother, Elder brother with his family and myself with my family and all are coparceners of HUF. Assets are inherited agricultural property.
Prior to year 2010, my father was employed and posted outside of the village where agricultural property is situated. With his full consent, my mother with other members of family were managing the HUF property Cultivation in his absence for few years. The control and management of the affairs of HUF was situated in a distant village from Bangalore.
The Kartha i.e my father had consented my mother to buy a residential site in Bangalore and to get registered in her name by using accumulated HUF property agriculture income in the year 1987-89 as this asset would be useful in future for their children (then minors) to settle down in Bangalore. During that period both sons were minors.
Income Tax returns for the entire period till date have been filed by our HUF before the jurisdictional IT Authorities along with enclosures of Statement of HUF income and affairs with complete details of this property (currently under a disputable gift deed) among other things. While most of these returns were not taken up for scrutiny, IT Returns for AY 2004-05 were taken up by the department and an assessment order has been passed.
After a lapse of over 25 years, it has come to our notice that in the year 2009, without informing or consulting other members of HUF i.e. father and sons (by then majors and independently legal heirs), my mother has executed a Gift Deed in favour of her own brother (Donee) citing her love & affection to him. Wrong age and address of my mother (Donor) are shown in the gift deed that appears to have been prepared by her brother or his associates a day earlier with false representation about the existence of ‘a residential house’ in that vacant site with a shed. She has represented before the Registering Authority as ' DONOR which expression shall where ever the context so requires or admits shall mean and include her heirs in the Gift deed' without taking consent signatures of Kartha and sons (by then majors) on the Deed in the presence of the said Authority. Similarly, the Donee has also referred to include his heirs (He has wife and two children).
Her Donee brother got the gift deed drafted on the previous day of registration by furnishing her false address where she was not residing, false age and had arranged two witnesses with false addresses where they were not living at that time as could be seen in the copy of Gift Deed. One of the witnesses is Donee’s wife who is also a beneficiary and shall have right to share quietly to enjoy with profits from the donated property in future. The other witness also has vested interest in that gifted property. The Testatum of witnesses of this Gift Deed is doubtful.
My mother was not having any source of income or employment to acquire a property on her own. She neither had had any other independent property or income of her own account at the time of registering gift deed. Basically my mother is a weak willed, highly susceptible and wishy-washy person.
We, the father & sons are of the opinion that property made out of such ancestral inherited HUF agriculture property income/funds cannot be gifted without the consent of other members of that HUF who had share in all such undivided earnings and are the legal heirs of all such property. In addition to other grounds as stated above, one of the witnesses is a beneficiary (wife of Donee) and not an independent witness. Please give legal advice for the following points:
1. Being a legal heir, successor whose rights, title or interest in the subject matter of the document is affected, whether I can challenge before a Court of Law for cancellation of this Gift Deed on above grounds?
2. What other legal options are available to the affected HUF members in the normal course?
3. Procedure to ascertain whether the gift deed is collusive.
4. My mother after realizing the mistake is very scary and fearful. She may not cooperate to receive notices either from Lawyer or from Court and may fail to appear before the court for giving statement. In such a situation what the law says to the concerned advocate and to the Court for conducting proceedings and to pass decree / orders on merits of law?
5. Name the Advocates from Bangalore available in your panel who can be approached.
Asked 8 years ago in Property Law
Religion: Hindu
One of the Ld. Advocate has opined that: under the said circumstances the cse can be filed on her name however her husband i.e., your father can appear on her behalf and depose evidences which is acceptable and admissible in law.
My mother may not respond or even sign GPA in favour of any other HUF Member for any purpose.
In this regard I discussed with my father who is very co-operative and has understood the issue. Pl inform whether I can make him an opposite party as he is HUF Kartha? Is it not his duty to keep HUF assets intact?
How I should make him a party to appear and depose in court independently ?
Asked 8 years ago
