• How to claim share in a property that was gifted

My grandfather passed away about 7 years ago, 4 years after my grandmother. We subsequently learnt that he had transferred ownership of his flat in Mumbai in  2005 to my mothers sister(her only sibling).
This was done by gift deed through a power of attorney holder after cancellation of a will in which my mother was a beneficiary.
My grandfather was ill for quite a while and confined to the house and almost bed ridden.
It is possible he was coerced to cancel the will and sign the gift deed.
Is it possible for my mother to challenge this gift deed and claim a share in this property? 
How and on what grounds can be done? what are her chances for success and how long will this take?
My aunt and her family have had possession of the flat since about 2002.
Please advise thanks
Asked 1 year ago in Property Law from Australia
Religion: Christian
Yes it is possible to challenge the gift deed. You may also see if the gift deed has been properly registered or not.

Also it needs to be understood as to how the will was cancelled. This will give rise to a title suit and the matter will be decided only after deposition of evidence and/or witness. 

This wont be a simple law suit.
Saptarshi Banerjee
Advocate, Kolkata
183 Answers
4 Consultations
4.9 on 5.0
1) your mother will have to file suit to set aside gift deed on account of fraud or cercion 

2) it has to be proved that your grand father was not of sound mind and  was suffering from illness that affected his mental health 

3) was your grand father suffering from any mental illness like Alzheimer or dementia ?

4)if your grand father was mentally sound you will have to prove coercion . 

5) it may take some years for suit to be decided . 

Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1) when did you discover the fraud? 

2) what were you doing for 7 years? 

3) suit ought to have been filed within period of 3 years of discovery of fraud 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
NINGAWWA

 Vs.

RESPONDENT:
BYRAPPA & 3 ORS.

DATE OF JUDGMENT:
17/01/1968

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.

CITATION:
 1968 AIR 956 1968 SCR (2) 797
 CITATOR INFO :
 F 1990 SC 540 (6)
 F 1990 SC1173 (4,6,7)



 the suit for setting aside the gift deed would be governed by Art. 95 of the Limitation Act, 1908. Since the Article prescribes a period of limitation of 3 years from the time when the fraud became known to the party wronged, and the suit in the present case was filed within a few days after the appellant came to know of the fraud, the suit with respect to the items in village L was within time and should be decreed. [800 G; 802 A-C, E] Clough v. L. & N. W. Railway, (1871) L.R. 7 Ex. 26; Foster v. Mackinon (1869) 4 C.P. 704, Sanni Bibi v. Siddik Hossain, A.I.R. 1919 Cal. 728 and Brindaban v. Dhurba Charan, A.I.R. 1929 Cal. 606, referred to. (2) As regards the plots in village T, in view of s. 16(3) of the Indian Contract Act, and s. II 1 of the Evidence	Act the gift deed must be presumed to have been obtained by	the appellant’s husband by undue influence. The suit	with respect	to these properties would therefore be governed by Art. 91. The period of limitation prescribed by the Article is three years and time begins to run from the date when the plaintiff discovered the facts entitling the plaintiff to have the instrument cancelled or set aside and not from	the date when the plaintiff escaped from the undue influence. Since the appellant in the present case knew at the	very time of the execution of the gift deed that	her husband prevailed upon her to convey the plots in village T to	him by undue. influence, her suit was barred by limitation so far as he plots in village T are concerned. [803 A-B, D, E- G] L3 Sup.	Cl/68-7 798 Someshwar Dutt v. Tirbhawan Dutt, 61 I.A. 224. applied
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. The fact that, as per you,  it was possible to coerce your grandfather to execute the POA and/or Gift Deed is not adequate to claim relief,

2. You shall have to prove with evidence that he was coerced in doing so,

3. Your mother can certainly challenge the said Gift Deed if she has any evidence to prove that your grandfather was coerced in to executing the said Gift Deed/POA,

4. Who was the POA holder and the witnesses to the said Gift Deed?

5. Talk to hem to ascertain whether the said Gift Deed was executed voluntarily or under pressure.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. The possibility of coercion cannot be ruled out, but the one who challenges the gift deed is under an inescapable obligation to prove coercion through cogent proof. The medical reports of your grandfather, which can prove that he was bedridden during his last days, will be very crucial.

2. Your mother is at liberty to challenge the gift deed on the ground of coercion. Nobody can predict the chances of success. 

3. Possession by your aunt does not impair the right of your mother to lay a challenge to the gift deed.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
If you strongly suspect a fraudulent game played by  your mother's sister in getting the property by the execution of a gift deed that too through a POA agent in her favor, suit for cancellation of gift deed and also seeking partition and separate possession of  her share may be filed, however,
The burden of proof to prove your grandfather was coerced or was not mentally sound or had been suffering from chronic ailment which crippled his movements due to which there are no chances for a execution of POA deed  or gift deed, are lying on the shoulders of the person who is making a claim on this basis. 
The discovery of fraud has to be   within three years of filing this suit. 
The chances of success depends on the prosecution of the case and to counter the defence stand taken by the defendants. 
The possession of property by your mother's sister cannot be claimed as a right to her title.  
T Kalaiselvan
Advocate, Vellore
14026 Answers
127 Consultations
5.0 on 5.0
A a registered document (including a will) can be challenged by any person whose rights, title or interest in the subject matter of the document is affected by the document which is under challenge. As per the CPC, the impugned document is generally challenged by institution of a suit in the civil court of appropriate jurisdiction by presentation of a plaint. So your mother can challenge the gift deed and file a case for declaring the  gift deed is null and void.

Gift deed may be challenged on the following grounds:
•Coercion- 
•Undue Influence- 
•Fraud.
•Actively concealing a material fact
•Making a promise without intention to perform
•Any other deception or any act statutorily declared as fraudulent
•Misrepresentation
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0
1. Was the said Will and its cancellation deed registered?

2. The gift deed was certainly registered since without registration no gift deed is legally valid,

3. You can collect certified copy of  the Gift Deed and also that of the will and its cancellation deed (if those were registered),

4. If you can collect evidence that your Aunt admitted that she had arranged to get the Will cancelled and the gift deed registered in her name for some reason then your half the battle is own since it will be established that the said gift deed was not executed and registered voluntarily out of love and affection but was arranged by your said Aunt,

5. since your grandfather was ailing and dependent on her and since she also admitted that she has got the will cancelled and the gift deed executed and registered in her name which has not been done voluntarily, the  said gift deed will be liable to be invalid and its registration cancelled,

6. Collect adequate evidence to establish the above facts and file  Declaratory  Suit claiming that the cancelled will be declared as valid,

7. Engage a local lawyer having expertise in this field.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1) you can obtain copy of gift deed from sub registrar office . 

2) if will is registered you can obtain from the sub registrar office 

3) it appears that your grand father was of sound mind at time of execution of will . 

4) has probate been obtained of the will . ?please clarify 

5) in the event suit is filed your aunt wont be evicted . she can continue to stay in the said flat till suit is decided 

Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
my mother does not have a copy of the canceled will.can we obtain a copy from public records? also how do we obtain a copy of the gift deed? we have all the reference nos like dates, registration no. Can it be obtained under RTI act?what are approx charges for the same?

If you know the registered  document number, you may apply for certified registration copy from the concerned registrar's office.   RTI act is not applicable to this.  Catch hold of a document writer who would be able to get you the desired copy of the document.





I`m not sure if my grandfather had alzheimers or dementia, well at least he was not being treated for it.
How exactly  do we prove  that he was coerced? my aunt said she arranged to have will canceled and gift deed executed solely in her name as she was bearing charges for maintenance of my grandparents and property.
are these valid grounds?

Why do you represent her grounds for her action, you should restrict to your claim.  If you are making a claim that your grandfather was not mentally alright and he was coerced by  your mother's sister, it becomes your duty to bring forth the grounds before the court on  which you rely upon. You cannot expect a spoon feeding answer for the events that took place in  your house, dig the home for discovering some evidence to prove your pleadings/statements likely to be put before the court supporting your case. 






If we file a suit will my aunt be evicted and the property sealed while the matter is decided?

The court will not decide about eviction without disposing the suit, you have to  wait  for the  outcome of the suit.
T Kalaiselvan
Advocate, Vellore
14026 Answers
127 Consultations
5.0 on 5.0
1. She can obtain a certified copy of the document from the office of sub-registrar. If she has the date and registration no then it should be a cakewalk to get it. There is no need to proceed under RTI. 

2. A finding of coercion is recorded through circumstantial evidence as there can, except in exceptional cases, never be a direct proof of coercion. 

3. Unless the will is set aside by the court your aunt cannot be evicted from the property.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Yes you can use RTI act for getting the same.You can file the suit ,The aunty can evict if you have to prove your case with ample evidence.
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0

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