mother is at liberty to execute gift deed for her share of property in name of her children
she can inform the court of her intention of doing so
there is no stay order restraining mother from selling her share
Intimating court regarding transfer of property
Hi, My mother is one of the 6 co-owners (all siblings) of an agricultural land in Gurgaon. This land was inherited by all of the co-owners after death of their father as per Hindu Succession Act. One co-owner (one of my mother's brother) became a defendant in a pending suit for declaration and partition filed by his grandson in Delhi High Court. This agricultural land was included as one of the several suit properties. He gave an undertaking stating that he would inform the court before selling any of the suit properties. Court noted it as following in its order: "Counsel for the defendant submits that the defendant has no intention of selling the suit properties. In case the subject properties are to be sold, the court will be informed in advance. This arrangement will continue till the application [I.A. under Order 39 Rules 1 and 2 CPC] is considered" Then 6 months after this order being a partition suit all co-owners were also impleaded to become defendants. But only my mother and the main defendant have appeared in this case and rest 4 co-owners are ex-parte. Even after the undertaking, the main defendant sold his share in the agricultural land in 2019 without informing the court. After that one after the other the rest of the defendants, also kept selling their respective shares without informing the court. At present only my mother hasn't sold her share of land to a third party. In 2019 my mother moved an application seeking clarification whether the undertaking of main defendant also applies to her and also seeking permission to sell her share. Notices were issued. But for the past 4 hearings (approx period between each hearing is about 5 months) either the lawyer of plaintiff or main defendant remains absent on hearing date. It seems both sides just want to postpone the case. Now my mother wants to gift the land to her 2 children. Queries: 1) Can my mother file an affidavit in the court informing the court that she would gift her share (through gift deed) in the agricultural land to her 2 children? My mother would wait for one hearing to pass after filing the affidavit in order to give plaintiff a chance to raise the objection. And only then gift her share. Would this be an acceptable way of informing the court? 2) Does my mother need to mention a period for getting gift deed executed in the above affidavit - like I would get the deed executed in next 4 months or so?
Asked 3 years ago in Property Law
Religion: Hindu
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9 Answers
1 yes but she needs to execute gift deed
2 yes if court permits
1. Since your mother has already approached court seeking its permission to transfer her property ion the manner as stated by her in her petition, she has to wait for the court orders otherwise she can withdraw the pending petition as 'not pressed' and then proceed with her intention to transfer the property by executing a registered gift deed as proposed by her now.
2. The affidavit yo9u now propose to file in the court may not be maintainable in court because any application filed by her will be decided by court only after hearing all the parties to the petition/suit.
Dear Client,
Registration of the gift deed is mandatory when the donor wishes to gift immovable property to the donee. A gift deed must be executed out of love and affection towards the donee without any consideration in return.
With regard to registering the said affidavit, the same would not be possible as there is a time frame within which one can register a document (the maximum time being eight months).
Without affidavit, other legal instruments may not be considered valid or proving that they are valid would be much more difficult.
Affidavits are useful beyond the courtroom as well.
Thank You.
Thanks so much for your replies. In future when we sell this agricultural land then buyer might ask for an indemnity clause in the sale deed - stating that in case of any adverse outcome in the pending case we would be compensating the buyer for the same. Is it a normal practise to put such a clause in sale deed? Are there any other alternatives to sell such a property?
Asked 3 years ago
It is normal clause you be incorporated in sale deed
you have to indemnify buyer in event any third party claims are made
you May find it difficult to find buyer if you don’t agree to indemnity clause
Yes if buyer is not sure about title and any further claims may occur after sale he may claim indemnity from you
Dear Client,
There is different in the concept of an An agreement to sell an immovable property is a vis a sale deed. It will not be out of place to mention that the scope of an indemnity clause in both the forms of contract may be different or an indemnity may not at all be required in an agreement to sell.
The title of the property shall be clear and it is the responsibility if the seller to disclose all the material facts in relation to the property while the buyer shall carry out all the necessary due diligence required to be sure that the title of the property is clear and marketable. It must be ensured by the buyer that the immovable property should not be subject of any pending litigation.
Thank You.
The clause what you refer is a normal issue which would reflect in every sale deed.
Even otherwise it becomes your duty to indemnify the buyer in case of any adverse outcome in the pending case at a later stage.
However you may assure the buyer that you will oblige
the undertaking would bind only your uncle
your mother has not given any such undertaking to the Court
also the IA under Order 39 is not yet heard and no stay order is passed
so there is no impediment for your mother to sell or gift her share
except that since the share is being transferred during the pendency of the suit, the doctrine of lis pendens will apply and the transferee/donee to whom the share is transferred will be purchasing/accepting such share subject to the outcome of the suit
the transferee/buyer can take an indemnity from the vendor/seller that in case of an adverse outcome, the vendor will protect him and this is a matter of contract between the 2 parties and is not any normal practice. the vendor may or may not agree to give such indemnity/protection to the buyer and the share may be sold on 'as is where is basis'
