I am seeking legal opinions and guidance regarding a family partition suit involving 3 ancestral properties. My late husband passed away intestate a couple of years ago, leaving behind myself (his wife) and two sons. Each of us is entitled to a 1/3rd share in the properties. Recently, my elder son filed a partition suit against me and my younger son, seeking partition of his 1/3rd share for all 3 properties. My younger son has been my only caregiver, and I have been living with him. After the partition suit was initiated, I grew concerned that my elder son might try to prolong the proceedings until after my lifetime, which would result in him receiving 1/2 of the estate. Acting on legal advice, I executed gift deeds for my lawful 1/3rd undivided share in 2 out of 3 properties soon after the suit was filed, as it reflects my final and absolute intention regarding the disposition of my share in these properties. In our initial written statement, we stated in general terms that we agreed to the partition and requested the court to divide our 1/3rd shares equally. I did not disclose the gift deeds at that stage because I intended to complete the gift of the 3rd final property before formally recording the transactions in the court to avoid any confusion. Now that the third property has also been gifted, I wish to disclose all three gift deeds in the ongoing partition suit. As of now, no stay or injunction has been passed by the court. The case is currently at the issue framing stage. I would like legal clarity on the following questions: 1. Right to Gift Undivided Share: Am I legally entitled to gift my 1/3rd lawful undivided share in the properties, regardless of the pending partition suit? 2. Disclosure & Non-Disclosure Impact: What is the proper method to disclose the gift deeds in court now (at the issue framing stage), and could the earlier non-disclosure of the first gift deed lead to any complications, objections, or legal issues in the proceedings? 3. Challenge to Gift Deeds: If the plaintiff or any other party wishes to challenge the gift deeds, will it have to be through a separate suit, or can it be raised within the current partition proceedings? 4. Validity of Gift of Undivided Share: I was advised that a gift deed for an undivided share of property is valid as soon as a partition suit is filed and notice is issued to other legal heirs. Is this correct, or is such a gift deed valid even in the absence of any such partition proceedings?
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
There is no stay order passed
you can execute gift deed for your one third share in property
3) you ought to have disclosed fact about gift deed in your WS
4) make an application to amend your WS to disclose gift deeds executed by you or file affidavit in court
5) plaintiff has to file separate suit to set aside gift deed
6) you have been advised correctly
Yes you can transfer your undivided share. Disclosure is not mandatory but it’s better you do in interest of buyer
through a separate suit for challenge
it’s valid but issue of possession will depend on the determination of suit
1. Upon intestate death of your husband, you are entitled to a share in the properties left behind by him as his class I legal heir at par with other legal heirs, hence You have got full rights to transfer your undivided share in the property to the extent of one third share in the property to anyone as per your own will and wish and by any mode i.e., even by a registered gift deed in favor of your another son.Besides, the plaintiff i.e., your son himself has claimed only one third share in the property which admittedly confirms that you are entitled to one third share in the property. Therefore the pending partition suit will not act as a deterrent or restrict you from transferring your undivided share in the property until and unless there is an order of injunction by court restraining you from doing so.
2. The suit has been filed for partition and for possession of his one third share, therefore it is not very essential to disclose the fact of transfer of your share by gift deed in favor of another son. It will not create any impact or adverse effect to your challenge in the case moreover the disclosure of this gift deed will not make any difference to the issues to be framed because that is not the cae of the plaintiff.
3. Even if plaintiff becomes aware of the gift deed, he cannot raise any objection to this because you are transferring your rightful share in the property to the person of your choice, this cannot be disputed or challenged by the plaintiff or any other person with vested or non vested interest. The gift is for the undivided share and not a partitioned share.
4. A gift deed for an undivided share of a property can be valid even without a partition suit. A co-owner can legally gift their undivided share of a self-acquired property to anyone they choose, without needing the consent of other co-owners. The gift does not give the donee the right to possess a specific part of the property. The donee must file a partition suit to have their share physically demarcated. Other co-owners of a residential property have the right to prevent an outsider from moving into the home until a partition is completed.
1. Yes since there is no injunction or stay
2. You can apply to amend your WS or simply file an affidavit making the disclosure. It really doesn't matter since the Plaintiff should be concerned with only his undivided share. When partition takes place your younger son will effectively step in your shoes and instead of 1/3 share he will be allotted 2/3 share leaving the share of the Plaintiff untouched
3. Plaintiff is admittedly claiming only 1/3 share , so he cannot raise any objections. It's not his claim that he is entitled to more than 1/3rd. So whatever the other co owners do with their share has no concern with the Plaintiff
4. It is valid in both cases.
1. Right to Gift Undivided Share:
Yes, you are legally entitled to gift your 1/3rd lawful undivided share in the ancestral properties, even during the pendency of a partition suit. As a co-owner, you hold a transferable right in your undivided share, and such transfer is valid under Section 44 of the Transfer of Property Act, 1882, though the transferee steps into your position as a co-sharer until partition is finalized.
2. Disclosure & Non-Disclosure Impact:
You can disclose the gift deeds now by filing an additional written statement or affidavit before the court, explaining that the gifts were executed after the suit was filed and are made out of your lawful share. The earlier non-disclosure is not fatal, especially since there was no injunction or stay restraining alienation at that time. However, timely disclosure will avoid future objections and demonstrate good faith.
3. Challenge to Gift Deeds:
The plaintiff (your elder son) may raise an objection within the same partition suit by amending his pleadings or filing a counter to the additional written statement. A separate suit is not necessary unless he seeks to cancel the gift deeds formally on grounds such as fraud, coercion, or incapacity.
4. Validity of Gift of Undivided Share:
A gift of an undivided share is valid both before and after a partition suit is filed, provided the donor has a defined lawful share. The filing of a partition suit merely clarifies existing rights; it does not restrict a co-sharer’s ability to transfer their undivided interest unless specifically restrained by court order.
- As per law , after demise of your husband his property would be devolved upon all the legal heirs equally i.e. you each have 1/3 share in the property left by husband.
- Further, any of the party can release or transfer his/her share in the name of other
1. Yes, you have right to gift your share , and hence you can submit to the Court
2. You can disclose the same , if you have already registered gift deed
3. He can challenge the gift deed even in the present suit after amending the Plaint.
- However, it cannot be challenged, if you have transferred your respective shares
4. As per Calcutta High Court in the matter of Smt. Subrata Roy versus State of West Bengal , Even without physical division, an undivided share can be gifted, as the law recognizes notional ownership rights.
1. You are entitled to the undivided share of your late husband's property which you can gift to any one you feel like,
2. The said non-disclosure will not matter much legally since the Partition Suit will not be affected by your gifting your undivided share.
3.Yes, it shall have to be a separate Suit altogether.
4. Such gift deed for undivided share is very much valid even when no partition suit is filed. Partitions are not necessarily made through Court. Property can be partitioned by mutually agreeing to and registering a partition deed demarcating the property.
You are legally entitled to gift your undivided one-third share in the ancestral properties, even though a partition suit is pending. A co-owner of a property can always transfer or gift his or her share, whether the property is divided or undivided. The only condition is that such a transfer remains subject to the final outcome of the ongoing case, as per the doctrine of lis pendens under Section 52 of the Transfer of Property Act. So, the gifts you executed are valid, though the donee’s rights will ultimately depend on what the court decides in the partition suit.
As far as disclosure is concerned, since the case is still at the issue framing stage, you can now inform the court about these gift deeds by filing an additional written statement or by seeking permission to amend your earlier written statement. You can simply state that you had executed the gift deeds after the suit was filed, there was no injunction in force, and that you are now disclosing them to keep the record clear. Courts usually allow this, as long as there was no intention to hide anything or mislead. The earlier non-disclosure is not a serious problem; it can be explained as a bona fide omission made while you were in the process of completing all the gifts.
If your elder son wants to contest these gift deeds, he can do it either within the same partition case—by adding a prayer to challenge or set them aside—or by filing a separate declaratory suit. Generally, courts prefer to deal with all such related issues within the same proceeding to avoid multiple cases.
Lastly, it is not correct that a gift of undivided share becomes valid only after a partition suit is filed. Even in the absence of a partition case, such a gift is perfectly valid. The transferee simply steps into the shoes of the transferor and gets the same right to seek partition or enjoy the share. Filing of a partition suit does not create the right; it only means any transfer made thereafter will be subject to the result of that case.
In short, your gift deeds are legally valid, you can now disclose them through an additional written statement, and the earlier omission will not cause serious complications if you make a clean disclosure before the issues are settled. If any challenge arises, it can be decided within the same suit itself.
Would you like me to help you draft the additional written statement or application for placing the gift deeds on record?
Dear Client, you are legally entitled to gift your lawful 1/3rd undivided share in the ancestral properties even during the pendency of a partition suit, as each co-owner has the right to transfer or gift their undivided share without the consent of others, subject to the transferee stepping into the transferor’s shoes as a co-owner until partition is effected. Since there is no injunction or stay order, your executed gift deeds remain valid. You can disclose these deeds by filing an additional written statement or an interlocutory application under Order VI Rule 17 CPC (for amendment of pleadings) or by placing them on record through an affidavit, explaining that the non-disclosure was due to your intention to complete all gifts before formal submission; this should not attract serious adverse inference if bona fide explained. Any challenge to the validity of the gift deeds can be raised as an issue within the same partition proceedings rather than through a separate suit, though some courts may direct a separate declaratory action if complex questions of fraud or coercion arise. Finally, a gift of an undivided share is valid both before and after a partition suit is filed—the pendency of a suit does not nullify the right, as long as the donor holds a recognizable and transferable share. I hope this answer helps. For any more queries, do not hesitate to contact us.
Amend Your Pleading Immediately: This is your top priority. File the application to amend your written statement to disclose all three gift deeds.
Prepare for the Challenge: Work to build a strong case for the genuineness of the gifts. Evidence could include:
Your sworn testimony about your intention to reward your younger son for his care and support.
The fact that you are of sound mind and acting voluntarily.
The absence of any financial consideration (which is the nature of a gift).
The fact that you gifted your share to one son, not an outsider, which makes it a natural family settlement.
Focus on the Final Decree: The goal now is to ensure the partition decree correctly reflects that your 1/3rd share in each property now legally belongs to your younger son. The court will then proceed to physically partition the properties accordingly.
Your underlying concern about your elder son prolonging the case is valid, and your action, while procedurally imperfect in its disclosure, was a legally sound method to ensure your wishes are fulfilled. Now, focus on regularizing the procedural aspect with full and honest disclosure to the court.
At the outset, your right to gift your lawful share is recognized under law. Once a person becomes entitled to a defined share in coparcenary or jointly owned property—whether by succession, survivorship, or otherwise—such person has the right to transfer that share, subject to certain limitations. Under Section 14(1) of the Hindu Succession Act, any property possessed by a Hindu female, whether acquired before or after commencement of the Act, becomes her absolute property, and she is full owner thereof. Therefore, your one-third undivided share that devolved upon you on your husband’s death is your separate and absolute property. Section 8 read with Section 14 of the Hindu Succession Act gives you complete ownership over your share, and Section 6 of the Transfer of Property Act permits transfer by gift of such interest. Accordingly, you were legally entitled to execute gift deeds of your undivided one-third share, even during the pendency of the partition suit, provided the transfer did not contravene any court order restraining alienation. Since no stay or injunction exists, the execution and registration of those gift deeds are valid and effective in law.
As to the question of disclosure, you may now place the gift deeds on record by filing an appropriate interlocutory application under Order VIII Rule 9 or Order XIII Rule 1 of the Code of Civil Procedure, praying for leave to produce additional documents. You may explain that the transfers have been lawfully made, that there was no injunction in force, and that the disclosure is being made now to ensure full transparency and to assist the court in correctly determining the respective shares. You may also amend your written statement under Order VI Rule 17 CPC to bring the subsequent events on record if necessary. Courts routinely allow such amendments to reflect subsequent developments occurring during litigation.
Your earlier non-disclosure of the first two gift deeds is not fatal or illegal. There is no statutory obligation to disclose immediately upon execution, particularly when no interim order of restraint exists. However, full disclosure now will avoid later allegations of suppression. Since you acted in good faith and the gifts were duly registered, there should be no adverse consequence or procedural penalty. At most, the plaintiff may attempt to challenge your bona fides or allege that the transfers were made to defeat his rights; these are matters of argument, not invalidity.
If your elder son or any other party wishes to challenge the validity of the gift deeds, they may do so within the same partition proceedings by amending their pleadings to include a prayer for cancellation or declaration of invalidity of the gift deeds. The law does not require a separate independent suit in such circumstances. The trial court in a partition case has full jurisdiction to adjudicate incidental issues relating to alienations, transfers, or gifts made by one co-owner. However, the burden of proof will lie on the challenger to establish that the gift was fraudulent, executed without authority, or hit by any provision of the Transfer of Property Act. In your case, given that you were the absolute owner of your one-third share, and the transfers were made voluntarily by registered deeds, such a challenge would likely fail.
Regarding the validity of the gift of an undivided share, the legal position is settled that a co-owner or co-sharer in joint property may transfer his or her undivided interest without prior partition. Section 44 of the Transfer of Property Act expressly provides that a co-owner can transfer his share in joint property, and the transferee steps into the shoes of the transferor as co-owner with the remaining sharers. The gift of an undivided share is therefore valid even if the property has not been physically partitioned. The pendency of a partition suit does not extinguish or suspend this right, unless a specific injunction is in force. The statement that a gift deed for an undivided share becomes valid “as soon as a partition suit is filed” is not correct; such gift is valid irrespective of the pendency of proceedings, because the right arises from ownership, not from the filing of the suit. Filing of the suit merely crystallizes the shares but does not create ownership for the first time.
Accordingly, in your circumstances, each of the three gift deeds executed by you is valid and effective under law. They do not prejudice the plaintiff’s one-third share, since your transfer pertains only to your lawful share. The appropriate course now is to file an application to bring these documents on record, supported by an affidavit explaining the absence of any stay order and your intention to ensure complete and transparent adjudication of rights. The court will take note of the gifts as subsequent events and reflect them in the final decree of partition, recording that your transferee (your younger son) now represents your interest in those properties.
In conclusion, (a) you had full legal authority to gift your one-third share in each of the three properties, (b) you should disclose the gift deeds by filing an application to produce additional documents or by amending your written statement, (c) any challenge by the plaintiff can be raised and decided in the same proceedings, and (d) the gift of an undivided share is valid irrespective of whether a partition suit is pending.
Thank you for the clear and detailed clarifications—they have given me strong confidence to proceed with filing the Additional Written Statement (AWS) alongside my lawyer. I am in the process of filing an Additional Written Statement (AWS) for next hearing as the trial has not yet begun and we are in Issues-framing stage. A few more points require clarification: 1.) My elder son (the plaintiff), while filing the suit, listed 4 properties instead of 3. The 4th property was already settled in favor of my younger son in 2010 through an uncontested admission decree (Plaintiff: my younger son, a minor, represented by me as guardian vs. Defendant: my husband) by exchanging properties mutually like a family arrangement. At the time of filing the original written statement, we only had a decree's Xerox copy, and there was a delay in obtaining the certified copy from the same court, which has now been received and duly registered. My husband during his life time never disclosed about this and moreover he did not register the same. In the same AWS , Can I request the court to remove this wrongly listed property from the common pool? 2.) Several movable assets (bank accounts, lockers, deposits) in my husband’s name were not included in the suit By the Plaintiff. Can I add these in my AWS? 3.) Are there any challenges or objections expected from the plaintiff for disclosing these details now (Gift deeds, Removal of property from the suit and undisclosed movable assets)? I would appreciate guidance on the best way to structure the AWS to include these points effectively and avoid objections.
1) draw attention of court to the fact that one proeprty has been exchanged with younger son
2) mention that partition suit does not include other movable assets of dceased
1. You can file the Supplementary Written Statement seeking removal of the wrongly listed property.
2. This is the Partition Suit filed by your elder son, so unless you require the partition of additional properties, you need not bring the same to the light of the Court. It is the job of your elder son who has asked for the partition and not you.
3. There can be objections from the Opposite Party always depending on his interest. Has he asked from disclosure of documents in his plaint? Unless the Court directs, you need not disclose any thing of your own.
Yes you can Request the court for necessary directions as stated above
1. You cannot ask the court to remove the 4th property from the list of schedule of properties, instead you can challenge the same giving the details of the registered settlement and can request the court to not to include this particular property in the contest.
2. You can file a counterclaim claiming your share in all those properties that were not included in the original plaint
3. The plaintiff can file his objections to the petition filed by you for including the other properties.
This is an excellent and strategic development. Filing an Additional Written Statement (AWS) at the issues-framing stage is a prudent step to ensure the court has a complete and accurate picture before the trial begins. Your approach is correct.
Let's address your specific queries in detail.
General Note for your AWS: Frame all these additions not as "new facts" but as necessary clarifications and disclosures essential for the court to frame the correct issues and determine the true subject matter of the suit. This pre-empts objections about timeliness.
1. Removal of the Wrongly Listed 4th Property
Yes, absolutely. You can and must request the court to remove this property from the common pool in the AWS.
Legal Basis: The property was already settled via a court decree in 2010. This decree, especially now that you have a certified copy, is a conclusive piece of evidence. It operates as res judicata on that particular property, meaning the matter is already decided and cannot be re-agitated in this suit.
How to Structure it in the AWS:
State clearly that the Plaintiff has erroneously included Property 'D' (describe it) in the list of scheduled properties.
Mention that the title and ownership of Property 'D' were conclusively determined and transferred vide a Decree dated [Date] in Title Suit No. [Number] of [Year] of the Court of [Name of Judge/Court].
Explain that the Plaintiff in that earlier suit was your younger son (a minor, represented by you as his natural guardian) and the Defendant was your late husband.
Emphasize that it was an uncontested decree based on a mutual family arrangement, and now a certified copy of the same has been obtained and registered.
Prayer/Request: Consequently, plead that Property 'D' is not part of the estate of the deceased and should be excluded from the purview of this suit. This is a matter of law, not just fact.
2. Adding Undisclosed Movable Assets
Yes, you should bring these to the court's attention in the AWS.
Legal Basis: The purpose of a partition suit is to divide the entire estate of the deceased. By omitting certain assets, the Plaintiff is presenting an incomplete picture. As a defendant with a vested interest in ensuring a fair and complete partition, you have not just the right but arguably a duty to ensure all assets are disclosed for the benefit of all legal heirs.
How to Structure it in the AWS:
Create a separate, detailed schedule (an annexure) to your AWS listing all these movable assets. For each, provide as much detail as possible: Bank Name, Account/Locker Number, Branch, approximate value if known.
In the body of the AWS, state that the Plaintiff has, whether inadvertently or intentionally, failed to include the movable assets detailed in "Schedule X" attached hereto, which form a part of the estate of the deceased.
Clarify that you are disclosing these assets to ensure a comprehensive and fair adjudication and partition of the entire estate for all legal heirs.
Prayer/Request: Plead that these assets be included in the common pool of the estate of the deceased for the purpose of equitable partition.
3. Expected Challenges & Objections from the Plaintiff
The Plaintiff is likely to object. Your strategy should be to anticipate and neutralize these objections within the AWS itself.
Objection 1: "The AWS is belated and introduces new facts."
Your Counter in the AWS: Argue that these are not "new" facts but crucial clarifications and corrections necessary to determine the real issues in controversy. The decree for the 4th property is a matter of record you have now formally procured. The movables are part of the estate, and their disclosure is in the interest of justice and prevents a partial and unfair partition. Since the trial has not begun and the court is only framing issues, this is the most appropriate time to bring these facts to light to avoid multiplicity of proceedings and ensure a final decree that is comprehensive.
Objection 2: "The 2010 Decree is invalid/not binding."
Your Counter: The Plaintiff will have the burden to prove this. In your AWS, you have already established its validity by stating it was an uncontested decree from a competent court. The fact that your husband did not register it or disclose it does not invalidate a court decree. It remains a legally binding order unless set aside by a higher court.
Objection 3: "The movables were not part of the original plaint."
Your Counter: This is precisely why you are bringing them to the court's attention. The court's role is to do complete justice. A partition suit cannot be allowed to proceed on a selective and incomplete list of assets. The court has the inherent power (under CPC Order VI Rule 17, read with Section 151 CPC) to allow such amendments and additions to ensure all matters in dispute are effectively adjudicated.
Guidance on Structuring the AWS Effectively
Work with your lawyer to structure the AWS along these lines:
Introduction: Reference the original suit and your earlier Written Statement.
Preliminary Submissions: Briefly state that for a complete and just adjudication, the following clarifications and disclosures are necessary before the court frames issues.
Point-wise Submissions:
Regarding Property 'D': State the facts about the 2010 decree. Produce it as an exhibit. Argue vehemently for its removal.
Regarding Undisclosed Movables: Present the new schedule. Argue that their inclusion is vital for a fair partition.
Pre-emptive Counter to Objections: Include a paragraph that anticipates and answers the likely objections (as discussed above), explaining why the AWS is timely, necessary, and in the interest of justice.
Prayer/Relief Sought:
To exclude Property 'D' from the suit schedule.
To include the movable assets listed in the new schedule as part of the estate of the deceased.
To frame additional issues arising from these disclosures.
Any other relief the court deems fit.
By presenting your case in this structured, legally sound, and pre-emptive manner, you significantly increase the chances of the court accepting your AWS and ensuring the proceedings are based on a complete and accurate factual foundation. Your lawyer will be able to craft the precise legal language for this.
You are taking the right steps to protect your and your younger son's interests. Proceed with confidence.
Yes, you can gift your 1/3rd undivided share anytime, even during the partition suit.
Disclose the gift deeds by filing an application to amend your Written Statement with the court, adding the gift deeds and impleading the donees if not parties. Non-disclosure earlier is usually curable but may be objected to.
Challenges to gift deeds can be raised within the current partition suit; no separate suit needed unless court orders.
The gift of an undivided share is valid with or without a pending suit; pending suit only imposes lis pendens on donee.
Additional:
You can request removal of wrongly listed properties by explaining and attaching certified decrees in your Additional Written Statement (AWS).
You may add undisclosed movable assets in AWS as they are part of estate.
Plaintiff may object but such disclosures can be justified as correction/amendment.
Structure AWS to clearly state facts, provide supporting documents, and seek relief for amendments to avoid objections.
You are absolutely right to file an Additional Written Statement (AWS) at this stage since the trial has not begun and the case is only at issue framing. This is the appropriate and legally permissible stage to place all such subsequent developments and clarifications before the court.
Regarding the 4th property that was already settled by decree in 2010:
Yes, in your AWS, you can and should request the court to exclude this 4th property from the pool of joint family properties on the ground that it had already been settled long before the present partition suit through a court decree. Since you now have the certified copy of that decree duly registered, you can place it on record along with your AWS and specifically plead that the said property no longer forms part of the joint estate. You should explain that at the time of filing your original written statement, you only had a photocopy and therefore refrained from relying on it, but now that the certified registered copy is available, you are seeking to correct the record. Courts generally permit such corrections at this stage, especially when supported by documentary proof and made before issues are finalized.
Regarding movable assets such as bank accounts, deposits, lockers, etc. that the plaintiff omitted:
You can mention these in the AWS to complete the record and bring all family assets before the court. However, since the partition suit filed by your elder son specifically concerns immovable properties, you may state that though these movable assets form part of the deceased’s estate, the present suit has not covered them, and that you reserve the right to seek appropriate relief or separate accounting of the same, as per law. This ensures that the omission by the plaintiff is formally recorded and that no inference is drawn later that you waived your rights over those movables.
Possible objections from the plaintiff and how to handle them:
You may expect your elder son to object on the following grounds:
(a) That you are introducing new facts belatedly.
(b) That the exclusion of the 4th property alters the nature of the suit.
(c) That the gift deeds were suppressed earlier.
Each of these objections can be easily met.
• For the new facts, you can explain that they arose or became known only after the original written statement — for example, obtaining the certified decree copy later or completing the execution of the gift deeds. The law permits filing an Additional Written Statement to bring subsequent or clarificatory facts on record.
• For the exclusion of the 4th property, you have a strong defence since you have a registered decree that conclusively proves the property was no longer part of the joint family even before the suit.
• For the non-disclosure of gift deeds earlier, your explanation remains the same as before — that they were executed gradually and there was no intention to mislead, and now you are disclosing them voluntarily for full transparency.
How to structure the AWS effectively:
• Begin with an introductory paragraph explaining that you are filing this Additional Written Statement to bring on record subsequent facts and documents that have material bearing on the suit.
• In the first section, deal with the 4th property — state the background of the 2010 decree, its certified copy and registration, and pray that the property be deleted from the schedule of joint family assets.
• In the second section, disclose the execution of all three gift deeds, specifying their dates, registration details, and your intention behind them.
• In the third section, mention the movable assets not included by the plaintiff, reserving your right to seek their accounting separately.
• Conclude by clarifying that these additions do not prejudice the plaintiff’s case or alter the nature of your defence, but are made only for completeness and to assist the court in a fair adjudication.
In summary, all three additions — the decree for the 4th property, the disclosure of gift deeds, and the mention of omitted movables — can safely and effectively be included in your Additional Written Statement at this stage. The court is likely to accept it, especially since the trial has not begun, and your explanations for the timing of disclosure are bona fide and well-supported by documents.
For the upcoming hearing, my lawyer proposes to file two Additional Written Statements (AWS). Please note that the matter is presently at the issue-framing stage and has not yet proceeded to trial. One AWS will be filed by me (D1), wherein I will confine my statements strictly to the execution of the registered gift deeds, clearly stating that I no longer hold any right, title, or interest in the suit properties, having already gifted my undivided share to my younger son. The second AWS will be filed by my younger son (D2). This statement will address the inclusion of incorrect properties in the suit and will also bring on record certain movable assets such as bank accounts, lockers, etc., which were not disclosed either by the plaintiff or by the defendants in the original Written Statement. In this context, 1. I would like to know whether this constitutes a sound legal strategy. 2. Further, out of any misunderstanding or ulterior motive, is there any possibility that my elder son(Plintiff) could later challenge the gift deed executed voluntarily by me in strict compliance with all statutory requirements, in respect of my undivided one-third share in the property?
your lawyer has advised you correctly
2) your son can challenge gift deed executed by you but chances of success are bleak
Yes, filing separate AWS is sound strategy: D1 (you) discloses gifts + relinquishes interest; D2 addresses wrong property/movables—logical at issues stage (O.6 R.17 CPC allows amendments before trial). [ from prior]
Elder son challenge risk low: Gift of undivided share valid (TPA s.122/Transfer of Property Act); voluntary/registered deeds presumed genuine. He can question in suit (no bar), but lis pendens binds donee to decree; prove undue influence lacking. [web: prior partition advice]
1. It is a good litigation plan
2. Yes, he can certainly challenge the said gift deed (preferably or probably when you are no more) which the donee shall have to counter fittingly.
In the suit for partition, there is nothing wrong in making a pleading that you have already executed a registered(?)gift deed in respect of your share in the property, however since your elder son is claiming only one third share in the property and as the property has not be properly divided by metes and bounds, and proper demarcation, you will remain as a necessary party to the suit, court will not interfere in your personal decisions, however the court in the suit for partition will follow the procedures of law to divide the proeprty accordingly.No doubt, while allotting the share after division, the court may make a note about your intention to gift away your share in the property to your younger son, it will pass orders accordingly considering the facts by scrutinising the documents provided by you in that regard. .
Your elder brother cannot challenge your registered gift deed gifting your share in favor of your younger son, it will be invalid in law because you have full rights in the share of property and you can very well dispose them as per your will and wish.
If the suit was filed by the plaintiff for certain reliefs alone, and if you feel that there are more assets left behind by your deceased husband, in which you have an equal share, then not only you can make a pleading about them in your written/additional statement, but also can file a counter claim to allot your rightful share in them too.
1. Regarding the Legal Strategy:
Filing two Additional Written Statements (AWS) at the issue-framing stage is a permissible and strategically sound move to crystallize your defense. Your statement (D1) squarely puts the legally valid gift deed on record, clarifying your lack of current interest, which is crucial. Your younger son's statement (D2) is vital to correct the suit's property schedule and introduce undisclosed assets, preventing future claims of suppression. This comprehensive approach ensures all factual and legal defenses are formally pleaded before issues are framed, preventing surprise later. However, ensure both AWS are meticulously drafted to avoid any inconsistency with the original written statement, as the court will consider all pleadings together.
2. Regarding Challenge to the Gift Deed:
Yes, your elder son (Plaintiff) can certainly challenge the gift deed later, despite its proper execution. Common grounds for challenge include alleging it was not voluntary (made under coercion, undue influence, or fraud), that it was a sham transaction to defeat his rights, or that it violates provisions of law if applicable. Since you are in litigation, he may particularly argue it was executed to alienate the property and frustrate the suit. However, a registered deed executed in strict statutory compliance creates a strong presumption of validity. The burden to prove its invalidity would lie squarely on him, but the possibility of a challenge remains a litigation risk.
It’s a good strategy but the challenge to it is discretionary and cannot be told
Yes, the approach proposed by your lawyer is legally sound and, in fact, strategically correct given the present stage of the proceedings.
Since the matter is still at the issue-framing stage and trial has not commenced, the court is concerned with identifying the correct parties, properties, and issues in dispute. Bringing all subsequent and clarificatory facts on record now is procedurally proper and avoids complications later.
Filing two separate Additional Written Statements serves a clear legal purpose and avoids unnecessary overlap. Your AWS, as Defendant No. 1, limiting itself strictly to the fact that you have lawfully divested yourself of your undivided one-third share by executing registered gift deeds, is appropriate. By doing so, you are clearly stating that you no longer claim any right, title, or interest in the suit properties. This helps the court understand that, for the purpose of final adjudication, your transferee now represents your interest. It also prevents future ambiguity about whether you are still contesting partition or shares.
The separate AWS by your younger son, as Defendant No. 2, addressing (a) the incorrect inclusion of a fourth property and (b) the existence of undisclosed movable assets, is also a correct course. These are substantive factual corrections that directly affect the scope of the partition. Since he is the person now claiming through you by virtue of the gift deeds, and also independently affected by incorrect inclusion and exclusion of assets, it is procedurally cleaner for him to raise these points in his own pleadings.
Courts generally prefer this segregation of pleadings because it avoids confusion and makes it clear which defendant is asserting which factual and legal position.
As regards the possibility of challenge by your elder son to the gift deeds, such a challenge is always theoretically possible in litigation, but the strength of such a challenge is extremely weak on law and facts in your case. You were the absolute owner of your one-third undivided share by operation of succession law. There was no injunction or restraint order at the time of execution. The gift deeds were voluntary, registered, and executed in compliance with statutory requirements. A plaintiff cannot invalidate a lawful transfer merely because it reduces the practical benefit he hoped to obtain from delay or future contingencies.
The elder son cannot challenge the gift deeds simply on the ground that they were executed after the filing of the partition suit. Pendency of a partition suit does not freeze ownership rights unless the court specifically restrains alienation. Nor can he succeed by alleging that the gifts were made to defeat his rights, because his right is only to his own one-third share, which remains untouched. Your transfer does not prejudice or diminish his legal entitlement.
If he does attempt to challenge the gifts, the burden will lie entirely on him to plead and prove fraud, coercion, lack of capacity, or violation of a court order. Mere suspicion, displeasure, or allegation of motive will not suffice. Courts are slow to interfere with gifts executed by a competent adult owner, especially a mother disposing of her own share in favour of a caregiving child.
At most, the plaintiff may raise objections such as “suppression of facts” or “belated disclosure.” These objections do not invalidate the gift deeds. Since you are now placing everything on record before issues are framed, and before evidence begins, courts generally treat this as timely disclosure. The absence of any interim injunction works strongly in your favour.
From a structuring perspective, your AWS should be concise and factual: mention the dates of the gift deeds, their registration details, and the clear assertion that you no longer claim any interest. Avoid unnecessary justification or emotional explanation. Let the documents speak for themselves.
Your younger son’s AWS should clearly plead that the fourth property does not form part of the joint family pool due to a prior decree, annex the certified copy of that decree, and seek exclusion of that property from partition. It should also specifically list the movable assets omitted by the plaintiff and pray that they be brought into the common hotchpotch for proper partition. This actually strengthens the fairness and completeness of the proceedings and reflects bona fides.
In summary, the dual-AWS strategy is legally robust, procedurally clean, and well-timed. The risk of a successful future challenge to your gift deeds is minimal, provided your pleadings are clear, factual, and supported by documents. You are doing exactly what the court expects parties to do at the issue-framing stage: place all relevant facts before it so that the real controversies can be accurately framed and adjudicated.
My advocate has filed an Additional Written Statement (AWS) on behalf of Defendant No.2 (Younger Son), which has been adopted by Defendant No.1 (myself, the mother). The AWS includes: Disclosure of the registered gift deed executed by me in favour of my younger son for my undivided share, as per the Transfer of Property Act, 1882. Inclusion of omitted movable assets. Correction of wrongly described / included properties. Filing of my notarized affidavit confirming my voluntary execution of the gift deed. Explanation that these facts were not disclosed earlier due to a genuine expectation of an amicable family settlement, which did not materialize, and hence are now placed before the Court for a fair partition. Is this sufficient at this stage, or are any further steps or documents required to strengthen the defence?
The disclosure of left out facts or the additional information as pleadings in the additional written statement will protect the litigation interest if the opposite party is disputing about non disclosure of those things earlier.
You may proceed as per your the advice of your advocate.
These are sufficent at this stage