• 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 1 year ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1. Yes being a legal heir, successor you can challenge the validity and execution of the Gift Deed alleged to have been executed by your mother to her brother terming the circumstances suspicious and on grounds of fraud,
2. Seek cancellation and declaration that the Gift deed is null and void and not to be acted upon, in the interim seek complete stay on the Donee, his agents, representatives others from acting on the Gift Deed, or in any manner trying to dispose, mortgage or create charge or lien of the schedule property in any manner whatsoever, during pendency of the suit,
3. Can be determined during trial,
4. She is your mother give her the courage to face this legal hurdle for the betterment of her family and children,
5. You can contact me if you wish to proceed in this regard, my contact number is 93412 62422
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
5.0 on 5.0
1) there are number of lawyers on this website from Bangalore . You can contact any of them 

2) it is better your mother moves court to set aside gift deed on account of coercion by her brother 

3) if your mother is refusing to do so then your father and other members of HUF can move court to set aside gift deed 

4) you can take the plea that your mother had no source of funds to buy the property and it was bought out of joint family funds for the benefit o the members of the family
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
5.0 on 5.0
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? 
Well if you strongly believe that the gifted property was in fact bought out of the funds of HUF and remained in the name of your mother for which the UF has paid the income tax as well as the property taxes, then you may file a  suit to declare the said gift deed as null and void and the suspicious circumcumstances that led to the execution ofthe said gift deed may corroborate your pleadings as evidence from your side warranting merits on your side. 
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.

For 2 and 3 above, the above answer will give clues.



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?  
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. However as a son, you can  get the poa deed executed in your favor to conduct the case n her behalf to avoid her appearance in the court if you are capable enough to depose evidence in the case. 



5.	 Name the Advocates from Bangalore available in your panel who can be approached.
You can look for one yourself.
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
5.0 on 5.0
Hi sir/madam, you have every right to get back your property which was gifted by your mother to her brother without consent of HUF members. You are saying in your query is correct your mother has no right to gifted the property because of the said property earned from the ancestral property income, your mother has no earning at that time. You should file the civil suit for cancellation of Gift Deed before the city civil court Bangalore against your mother and her brother as Defendants in the said case. You have good grounds and legal options  to cancellation of the said Gift Deed. Collusive gift deed is one of the ground for cancellation of gift deed. You do not think about your mother will come before court or not and to file the written statement or not, you do not think like the civil procedure code having procedure about such persons regarding the same. If you want my legal service I will do it.
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
1) your father is proper and necessary party to the suit as property was bought out of joint family funds 

2) if your mother is not willing to take any action let suit be filed by your father and other coparceners for setting aside gift deed executed by your mother in favour of her brother
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
5.0 on 5.0
Hi sir/madam, your mother made a party as one of the Defendant i.e., opposite party and the Hon'ble Court has issued a summons to her and she came on record through her GPA holder if any, can file the objection statement in this regard. If your not come before court and not filed the objection statement/written statement in the said suit it will little bit helpful to your case... it is the tactics of the case, the advantage taken by the plaintiff/s who has challenge the said gift deed for cancellation. I will clarify it, If you want my legal service I will do it.
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
If  your mother isn't interested in filing a case against her brother to cancel the gift deed, you as a legal heir can challenge the execution of the said gift deed with a suit to declare the said gift deed as null and void for the reasons stated by you and also can seek your share in the property as a coparcener by partition.  That way you can make him a defendant in the suit along with others including your mother as a defendant because she only executed the said gift deed in his favor.
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
5.0 on 5.0
1. You can challenge the gift deed in the court if it abrogates or curtails your rights. If your mother is unwilling to appear before the court then she can appoint a POA who can appear to testify in the court. However, your mother will have to appear personally for the cross-examination. If she does not appear as an independent witness a warrant may be issued against her.

2. Your father can be one of the defendants as being the kartha he was the custodian of the property.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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