• Ancestral property

My father just passed away. I am being told that my father gave a gift deed of his ancestral property to his brother, without the knowledge or approval of my brother and me. Is my father allowed to gift our ancestral property share without the consent of my brother and me? Are we still entitled to our ancestral share of the property through our birthright? Is this gift deed that my dad gave to his brother valid or invalid since my brother and myself did not agree?
Asked 10 months ago in Property Law
Religion: Sikh

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20 Answers

An ancestral property cannot be gifted without the knowledge of the other shareholders. You can only gift what is yours. 

The gift deed is invalid and void. A suit has to be filed before the district court.

Rahul Mishra
Advocate, Lucknow
13945 Answers
65 Consultations

5.0 on 5.0

1) Your father can't give yours and siblings share to anyone from the ancestral property.

 

2) You and your siblings has brith right 

 

3) That gift deed is invalid for your and your siblings share. But for your father's share valid.

 

Note: I assume your father has two children. So in this case property will divide into three share and each one will get 1/3rd from your father's share in the ancestral property. So gift deed is valid for 1/3rd share and not 2/3rd share of children.

 

Ganesh Kadam
Advocate, Pune
12638 Answers
205 Consultations

4.9 on 5.0

Ywah sure it does. Does your father had other siblings ie sisters/brothers besides the brother to whom the gift was made??

Rahul Mishra
Advocate, Lucknow
13945 Answers
65 Consultations

5.0 on 5.0

If the gift was made before your and your brother's birth and got update on property papers your uncle name then we can't do anything as of now.

 

But the gift deed is made after you and your brother's birth then you have full rights for your share as I had mentioned above initially.

Ganesh Kadam
Advocate, Pune
12638 Answers
205 Consultations

4.9 on 5.0

You may file a suit against him and his children.

Rahul Mishra
Advocate, Lucknow
13945 Answers
65 Consultations

5.0 on 5.0

Rules are applicable for the same, but in house you are eligible for price. Depends upon how much big house is?

Ganesh Kadam
Advocate, Pune
12638 Answers
205 Consultations

4.9 on 5.0

Ancestral property cannot be gifted by father 

 

file suit to set aside gift deed 

 

make legal heirs of brother party to the suit 

 

 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

 

You have to take the plea that neither you nor brother was aware of execution of gift deed 

 

you came to know about gift deed recently only and suit has been filed within period of 3 years of execution of gift deed 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

Act as mentioned herein above 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

1. Your father was not entitled to gift the entire ancestral property to his brother, as you and your brother have inherent birthright as it's Ancestral property. Your father was entitled to gift only his specified share in the ancestral property to his brother.

2.  Even though limitation period is over, but since you can file a suit for cancellation of the Gift Deed praying for condonation of delay.

Shashidhar S. Sastry
Advocate, Bangalore
4469 Answers
263 Consultations

5.0 on 5.0

The law governing inheritance of ancestral property is quite broad having following implications. Property acquired by grandfather will be divided—in your case—among his sons equally including father and uncle/s.  The property devolved on father  will be divided among his sons—you and brother—equally. In your case father is entitled to transfer to uncle only to the extent of his share, that is one third, he have 2 sons. You have the following remedies against gift deed…

  1. You can challenge the gift deed if it is more than his share as you were minors.
  2. Limitation computed from the date of knowledge of transfer. If knowledge of transfer through gift deed is acquired recently, you can challenge the gift even now.
  3. Even if the gift is only to the extent of his share, you can still challenge the same as obtained by fraud and coercion when you were minors.  

Advice:

  1. Obtain certified copy of gift deed from the office of Sub-Registrar.
  2. Issue notice seeking partition of property giving details of property including gifted property.
  3. File a suit for partition of all properties including gifted property. Seek partition of properties and cancellation of gift deed.
  4. Include all legal heirs and all properties in the suit.
  5. It will take time but you will get what is due to you, including gifted property.

Ravi Shinde
Advocate, Hyderabad
3525 Answers
42 Consultations

5.0 on 5.0

Only you hv right on ancestral property and your father cannot give the land to anyone without your consent.

Khyati Malik
Advocate, Bhopal
91 Answers
2 Consultations

Not rated

If your father  had inherited the said property  from his  father then it becomes your father's won and absolute property.  Thereby he can very well transfer the property which is on his name to anyone of his choice, he need not obtain permission or NOC from anyone for doing this job including his own children.

First of all you ascertain if it is an ancestral property, because generally people misunderstand the grandfather's property as ancestral property.

 

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

The property was transferred by executing a registered gift deed around 3 decades ago has not been objected till date by anyone. 

If your uncle had taken possession and he is in enjoyment of the said property for all these 30 years, then, even if it is assumed that it becomes an ancestral proeprty, at this stage the claim by others may be barred by limitation because your uncle may perfect his title by adverse possession too and the evidence for his possession is the registered gift deed on his name 

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

You have not stated that whether the said house property is under the possession and enjoyment of your uncle or not being utilised by anyone or whether the same is in your family's possession. 

You may clarify the details and revert. 

For your information:"

An ancestral property is a property acquired by your great grandfather which has been passed down from generation to generation (your grandfather and father) up to the present generation (you) without being divided or partitioned by the family.

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

- If the said ancestral property was undivided , then your father was not having any right to gift the said property to his brother without getting consent of other legal heirs. 

- However, if your father has got that property after partition of the ancestral property , then it will considered as self acquired property , and being the owner of self acquired property he was having right to gift to his brother without taking others consent. 

- However, you can file a suit for declaration before the court for cancelling the gift deed . 

Mohammed Shahzad
Advocate, Delhi
10663 Answers
132 Consultations

5.0 on 5.0

Dear Client, 

This property is not earned by your father so he can not sell/gift it to anyone. According to Indian Succession law, you and your brother are the legal heirs of your grandfather's property. So you need not worry. If your father gifted it to anyone you can claim it in the future.

Thank You

Anik Miu
Advocate, Bangalore
5846 Answers
59 Consultations

4.9 on 5.0

You need consent of all children. If it's minor child then you need to approach court for the same

 

Prashant Nayak
Advocate, Mumbai
28570 Answers
101 Consultations

4.4 on 5.0

You can take back the property by filing suit as it was ancestral property. Even a minor has birth right and till he turns adult his share cannot be sold.

 

But you need to check if the property was partitioned between your father and others. As partitioned property becomes self-acquired. 

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

Hi 

First and foremost, if the property was not a self acquired property of your father and also if the  ancestral property was not inherited by your father either through gift/will or otherwise, then in law, the property at the hands of your father is an ancestral property.

The ancestral property at the hands of your father shall and will remain as an ancestral property given that you were minors at that time.

Hence by virtue of the property retaining its character as ancestral property,  your father does not have any right to execute a gift deed and that too when you were a minor. 

So, you can challenge the gift deed even now on the following grounds:

1) Article 65 of limitation act provides for 12 year limitation to file a suit (since you were a minor at the time of execution of gift deed by your father, you can file the claim within 12 years from the date of you attaining majority)

2) Also , since it was an ancestral property and your uncle is claiming sole ownership now after the demise of your property, you are entitled to file the suit within 3 years from the date of demise of your father. 

Hope this information is useful. 

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

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