Procedure to nullify a gift deed by husband to second wife
A member in my family did a second marriage after the death of his wife. He has two children (a boy and a girl) in first marriage who are now married and settled. Recently this person gave his house property to his second wife through a gift deed on promise that second wife will help him by giving money in settling some debts that he had for his daughter's marriage. Now, however, the second wife is not giving any money and as she has two sons in her previous marriage, we are also afraid that they will now sell it to someone else. In this context, we would like to nullify the gift deed (Ishta-dhanam) made towards the second wife. The husband is also of that opinion as of now. Kindly advice what are the normal procedures, cost that we may incur, issues that we will have etc regarding this.
Note: We are a Hindu family in Kerala
Asked in Property Law from Thrissur, Kerala
1. Once the gift deed is executed and registered in favour if his wife, she becomes its absolute owner.
2. Now once gift deed is executed and accepted by the Donee it can not be cancelled or set aside by the Donor in any circumstances.
3.So in this case unfortunately the husband can not restrain his wife from selling this house or transferring it to anyone she chooses. The conditions if any made in the gift deed will be of no hindrance.
1) it is a conditional gift deed executed by husband in favour of his wife
2) wife was supposed to settle some debts incurred by husband
3) since wife has refused to honour the conditions husband can revoke the gift deed if there is such a clause in the gift deed
4) section 126 of transfer of property act
when gift be suspended or revoked – The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked
5) “14. In Murikipudi Ankamma v. Tummalacheruvu Narasayya learned single Judge of Madras High Court held that in the absence of any express reservation of a power of revocation in the gift deed a donor does not continue to have the right to revoke a gift. For if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, a Court will not loose the fetters he has put upon himself and without reservation of power to revoke, gift cannot be revoked under Section 126 of the Transfer of Property Act
Hi, once the gift deed was executed it can't be cancelled.
2. The power to cancel the gift deed lies on the court so you have to file a suit before the court for cancellation of gift deed.
First of all ascertain that whether it was an irrevocable gift deed or conditional gift deed.
If it was a conditional gift deed, whether the said conditions were incorporated in the gift deed document.
If not then on what was the condition on which the gift was executed?
Thus, if it was a conditional gift deed and she has not complied with the conditions made, then that gentleman can very well cancel or revoke the gift deed on the basis of non-fulfillment of the conditions.
Thanks everyone for the answer. I would like to ask about one possible solution. Since it was brought at the time when his first wife was alive and though not in book, at least in practice, her life savings were also used in buying the property, can we ask the children of this person to approach the court saying this unilateral action be nullified? I think he will side with his children for such a move. What are the possibilities of success here?
Asked 1 year ago
1) how did wife make payment ?
2) by cash or cheque ?
3) was money paid through her bank account?
4) it is necessary to peruse the sale deed for purchase of flat , gift deed executed by husband to advice
I find no merit in such suit. It would be a futile attempt causing loss of money and time.
1, Hi, husband has to file a suit before the court for setting aside the gift deed while executing the gift deed consent was taken by way of fraud, coercion, undue influence and file a suit against second wife.
Since it was brought at the time when his first wife was alive and though not in book, at least in practice, her life savings were also used in buying the property, can we ask the children of this person to approach the court saying this unilateral action be nullified? I think he will side with his children for such a move. What are the possibilities of success here?
No doubt without clinching evidence such pleadings may not not be effective and one cannot establish his/her case, but corroborating evidence with preponderances and also if the donor himself states as a witness that this property was purchased out of the joint funds, sometime there may be rattle in the case, winning chances are 50%. You can try your luck.
1.The remedy available to this man is to file a lawsuit for cancellation of gift deed in the court. The gift deed, from you narrative, seems to be a conditional gift deed. If the conditions laid down in the gift deed are not honoured by the donee the donor can apply for cancellation of the deed.
2. If the husband apprehends a sale of the gifted property by his wife then he should seek a stay against the sale thereof.
If the property was purchased partly out of the funds of the first wife then her children can also challenge the gift deed and seek a stay against the sale of property, but they will have to prove in the court that the consideration was paid from the assets of their mother.
It is difficult to revoke a deed of gift .Once it was registered it cannot be cancelled unilaterally. But it can be cancelled by filing a petition for declaration of that gift deed is null and void before a court with ample evidence