Grand mother can sell her undivided share to grand son by registered sale deed
Gift deed
Dear Sir/Madam, My grand father died intestate in 1991. It was ancestral property. Legal heirs are Grand mother, two sons and daughter. It is G+3 building. All four sat together and allotment of 1st floor to daughter was decided. In 2006, Grandmother and two sons executed relinquishment deed in favour of daughter thereby giving up their rights on 1st floor. Daughter became absolute owner of 1st floor and no longer part of jointly held property. Now daughter died in 2021, and only Son is legal heir. Grand mother wants to transfer her undivided share to son of daughter. But 2 sons are non cooperative and don't want to give their consent. Given the situation what method of transfer is preferable i.e. sale deed or gift deed? Warm regards, Sailesh
Asked 2 months ago in Property Law
Religion: Hindu
13 Answers
The grand mother has undivided equal share in the remaining part of the building and in spite of objection rom her other sons she can transfer her undivided share to him.
Since no physical partition is made the sons have got opportunity to object to such transfer which has no legal backing .
The grandmother can transfer her undivided share in the property in favor of her grandson by executing a registered gift settlement deed or registered sale deed.
The beneficiary can then file a suit for partition and claim separate possession of his share in the property.
The doubt arose because, In 2022, the supreme court held that in Joint Family Property- Power to gift only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family - Where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained. I think registered sale deed is more relevant in our case. Later, filing for partition suit.
Asked 2 months ago
Registered sale deed is best option
You were advised about the options before you.
Now you can decide about the best option suiting to the prevailing circumstances.
- As per law, after the demise of grandfather intestate , his property would be devolved upon his all legal heirs equally i.e. each will have 1/4th share in the property.
- Further, any of the legal heirs can release /transfer his/her respective share in the name of other legal heirs without taking consent of others.
- Since, the grand mother and two sons release their respective shares in the name of daughter , then they have no right to cancel the relinquishment deed even said daughter has died.
- Further, after the demise of daughter intestate , her property would be devolved upon her legal heirs equally and the two sons having no right over the same as they have already released their shares.
Gift deed.
No such judgement
Please refer Supreme court judgement viz. K.C.Laxmana vs K.C.Chandrappa Gowda on 19 April, 2022
Asked 2 months ago
I have gone through the judgment
it provides gift made to person who is not member of joint family is void
karta can gift property for pious purpose to member of joint family
Grandfather's property is not an ancestral property especially if it devolved on his wife and children alone and the legal heirs are not coparcaners, they are all shareholders.
Whatever, if you don't want to go with the gift deed mode, you may opt for the alternate mode of transfer.
Judgement dose not apply in your case
Dear Client,
Given your situation, a Registered Sale Deed would definitely be more appropriate and useful. Here’s why:
Taking into consideration of the recent Supreme Court verdict on K. C. Laxmana vs K. C. Chandrappa Gowda (2022) Though it is authorised to give property to the Joint Hindu Family, the said power is limited and should not be exercised without the consent of all the coparceners. Since both sons are unfriendly, then a gift deed may be voidable depending on the results by the two sons.
On the other hand, a sale deed is a stronger form of transfer in this context as it involves the actual sale of the property and the consideration paid by the buyer for the property. If your grandmother conveys her separate erected title by a registered sale deed in favor of the son of the daughter, then it would not be considered as a gift deed and therefore, it would be less potent to be challenged. This is because while a quit rent entails that the buyer pays a token amount for the property and holds it his titulary right, a sale deed has some monetary consideration attached to it; and thus more definitive in the transfer of ownership.
In case the non-filing partner does not agree, executing the sale deed the next step is to file a partition suit. This would help to partition the asset and define the exact bits of each beneficiary, which would solve the problem of rights in common. This process even though time consuming will guarantee that the transfer of property rights is legally proper and prone to fewer litigations by other beneficiaries as compared to the traditional way.
Thus, it is advised to execute a registered sale deed along with a partition suit to protect the interest of the elder son at the present legal position and the non-cooperative attitude of the two sons.
Hope this helps!
- As per this judgment , a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant.
1. The Grandmother and her two sons have already relinquished their shares of the inherited property in favour of the daughter.
2. The daughter was therefore the sole owner of the entire property.
3. After her demise, her legal heir/s will inherit the said property and the granddaughter and her two sons have no role to play in the matter any further.
