• Gift deed to one child depriving other three children

Hello,
My father, Muslim by religion, has three sons and one daughter. My father lives with his children in the same house for last 60 years or so. In 2015 (February), my father at the age of 92 has transferred and registered more than 50% of this house (the only residential house we have) through a "gift deed" to his youngest son (52), depriving other children from their lawful shares. The “Gift Deed” has been attested with two witnesses and got it registered at the local Sub-Registrar office. The remaining (about 48%) of the same house is still owned by my father, meaning the remaining of the house will be inherited by all of his children, including his youngest son again, after my Father dies.  We are very much shocked and feeling deprived. Is there any law than can protect us? Is that "gift deed' be considered as a valid one? Can we go to court of law and fight against this?
Point to Note:
1. Originally, this property belonged to my grandfather, who died in 1984 leaving six sons including my father. That is my father has six siblings and through a "Partition deed (Bonton Nama)" among them, after the death of my grandfather, my father has been possessing this house. 
2. My Father does not have any title deed /or RS Khotian under his name, nor this property had undergone “Mutation”.
3.  He has just "Partition deed" among his brothers and got this house allotted to him. In other words, my father did not inherit this house from my grandfather through papers/deeds.
4. My father is still living in that portion of the house even after the Gift Deed has been registered in February, 2015. 
5. My younger brother is not living/spending nights in that part of the house which has been transferred to him, rather he is still living in the other portion (48% part) of the house, where he has been living for last 25 years. 
Please give me some helpful answers and show me the legal path to fight against that "gift deed". Do I have any scope to fight against my father’s "gift" transfer to his youngest son depriving others? 
Also, please provide one or a couple of reference cases similar to us so that I can cite them in our case. I will appreciate your response. Thank you so much.
Asked 1 year ago in Property Law from United States
Religion: Muslim
1. Under Muslim sharia law the father can transfer more than 1/3 rd share to anyone without consent of other co-sharers. SO you can file a suit for partition to claim your share.
2. It will help you to prove that the property is ancestral.
3. Ok, then the property is treated as his self acquired property. However that would not harm your due share in it.
4. Let him live.
5. Living or no living does not make any difference in your case.
File a partition suit first then think of decisions. You are putting cart before the horse.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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1) is your father mentally fit ? 

2) get your father examined by doctors who can opine whether your father is not suffering from Alzheimer's or any other illness that affects his mind 

3) has the partition deed between your father and his brothers duly stamped and registered ?

4) your father can during his lifetime execute hibanama or gift deed . It need not be registered 

5)depending upon father medical reports future course of action can be suggested 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
1. Your father is the absolute owner of the said property and can deal with the property in whichever way he feels like,

2. The said Partition Deed is his title deed and mutation does not confer title of property,

3. Actually he alongwith his siblings has inherited their fwther's property which has been partitioned amongst them. he is the absolute owne of the said property,

4. the fact tat your father is still living in the portion gifted by him does not make the gift deed executed and registered by him invalid,

5. the fact that your said donee brother is not living in the gifted portion also does not make the gift deed invalid,

6. Your only way of challenging the said gift deed is by alleging that your father at his 92 years of age was not in right mind to be capable of executing the gift deed or that it was got executed by coercion/fraud.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1) Muslims cannot bequeath more than one third of his property by will but he can execute gift deed during his life time 

2) since your brother is a lawyer he must have taken legal precautions 

3) check whether medical certificate is enclosed to gift deed executed by father 

4) you can on father demise move court to set aside gift deed on grounds that he was not of sound mind at time of execution of gift deed 

5) mental fitness of your father is the key to challenge gift deed 

6) you can also challenge gift deed on grounds of coercion or undue influence that father was forced to execute gift deed in favour of younger brother 

8) contact a local lawyer 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
1. You can collect certified copy of the gift deed from the Registrar's office to find out whether it was properly stamped or not,

2. It is to be stamped as per valuation of the property at the ime of gifting,

3. Your father is the absolute owner of the property which he can gift to nybody,

4. Collect all documents of your father's health specially mental incapability to decide or make judgement,

5. After his demise you can challenge the said gift deed on the ground that your father was mentally incapable of making ant deed legally for which the said Gift Deed should be treated as invalid in the eyes of law.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Partition deed is valid and it reflects your father's right over the house after his father’s death. Mutation is the change of title ownership from one person to another when the property is sold or transferred. Under Mohammedan law, to be a valid gift, three essentials are required to exist: 
(a) declaration of gift by the donor 
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and 
(c) delivery of possession of the subject of gift.
Under the Mohammedan law it is not necessary that there must be actual delivery of possession to make a gift valid. It is a fundamental rule of Mohammedan law as regards gifts,that "the donor should divest himself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there- should be a delivery of such possession as the subject of the gift is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case.

So the Gift deed executed by your father is also valid. If you want to challenge the same, do it only after the death of your father. Gift is a transfer of property where interest is transferred from one living person to another, without any consideration. It is a gratuitous and inter vivos in nature. This is the general definition that is accepted by all the religions, including Muslim law.

When Gift May Be Suspended Or Revoked 
Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the following are those conditions-
(1) That the donor and donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the donor's will;
(3) the donor and donee must have agreed to the condition at the time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court of law.

A Mohammedan on the other hand can revoke a gift even after delivery of possession except in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to her husband;
(2) when the donee is related to the donor within the prohibited degrees;
(3) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's possession
by sale, gift or otherwise; 
(6) when the thing given is lost or destroyed;
(7) when the thing given has increased in value, whatever be the cause of the increase;
(8) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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A gift or hiba has been defined under the Mohammedan law as a transfer of property made immediately and without consideration by one person to another and accepted by or on behalf of the latter.
Under the said law, gift is a donation conferring right of property without exchange.  The gift is in the nature of contract where there must be a tender of property, acceptance of the property by the donee and delivery of possession of the property. An essential condition of a valid Mohammedan gift is, therefore, that the donor must divest himself completely of he ownership of the property.  
A gift can be whole of the properties and even to an heir.  It may be mentioned that under the Mohammedan law, a Will cannot be made in excess of one third of the properties left by the testator or in favor of an heir.  No such restriction applies in case of a gift.
Possession means not always actual physical possession but possession which the property is capable of being given.  So far as declaration is concerned, it must be shown that the donor either in presence of witnesses or otherwise made a public statement that he gifted the property in favor of the donee and he divested himself of the ownership of the property by delivering possession to the donee.  
Where the donor and donee both reside in the said premises there must be some overt act by the donor showing clear intention to transfer possession and to divest himself of his ownership of his property.
Normally a gift once made is irrevocable because a gift is an absolute transfer of property by the donor to the donee made without consideration.  However on certain conditions a donor can revoke the gift and not his heirs.A revocation is effected only by a decree of a competent court after delivery of possession is made and until such decree is passed, the donee is entitled to the thing given. 
T Kalaiselvan
Advocate, Vellore
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