• Protecting title and transferring property to children where relatives verbally assert rights

A Hindu family matter in Jharkhand. The relationships are as follows.

X and his wife Y had two sons, A and B. P is the wife of A.

The chain for the property is as follows. Y purchased it from an outside seller through a registered sale deed. A few years later, Y sold it to P by registered sale deed. Since then the mutation stands in P's name, she has remained in continuous possession, and rent has been paid in her name.

The descendants of B occasionally assert rights in the property verbally. In over fifty years they have filed no objection, no suit, nothing. B claims they have some document which proves their right, and this document is unknown to A, Y and their family. 

P is now elderly and wishes to secure the title & transfer the property to her children during her lifetime.

1. What is the position of the descendants of B in respect of property that Y purchased in her own name and later sold through a registered deed?
2. What steps can P take now, while she and A are alive, to protect the title against claims that may be raised in future?
3. What is the appropriate manner of transferring the properties to her children in these circumstances?
Asked 19 hours ago in Property Law
Religion: Hindu

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5 Answers

As Y purchased the property from an outside seller via a registered sale deed using her own funds, the property is her self-acquired property under Hindu law. It never held the character of ancestral or coparcenary property. Y had the unconditional right to alienate, sell, or gift the property to anyone without seeking consent from her husband, sons (A or B), or any extended relatives. The transfer from Y to P via a registered sale deed transferred absolute title to P hence neither B nor his descendants have any legal share, claim, or right of inheritance in this property. Any attempt by B’s descendants to challenge the sale deed now is barred by limitation (Article 58/59 of the Limitation Act, 1963 imposes a 3-year limit from the date of knowledge or execution).

P can file a civil suit under Section 34 & 38 of the Specific Relief Act, 1963 in the local Civil Court (Jharkhand) seeking a formal declaration of her absolute title and a permanent injunction restraining B’s family from interfering with her possession or asserting false claims. P can issue a formal public notice through an advocate in local daily newspapers (Hindi & English) stating her sole title and continuous possession, inviting any claims within 15 days, and declaring that any unrecorded claims are null and void.

As P is elderly and wants the transfer executed during her lifetime, she can do so by executing a registered Gift Deed in favor of her children during her lifetime. This will extinguish P's ownership and vests full title directly in her children while she and A are alive to support it. Then it will become difficult to challenge in court once registered and accepted by the children. P can also execute a registered Will bequeathing the property in favor of her children but Will only takes effect after death. B's descendants might attempt to create friction or challenge the Will's validity during probate/mutation after P passes away.

If B’s descendants attempt physical or verbal obstruction during or after this process, file a Suit for Injunction in the competent local civil court.

 

T Kalaiselvan
Advocate, Vellore
91125 Answers
2525 Consultations

Descendants of B have no share in property as mother had during her lifetime sold it to her daughter in law through registered sane deed 

 

2) P can transfer property to her children through conditional gift deed 

 

3) Y can be one of the witnesses to gift deed 

Ajay Sethi
Advocate, Mumbai
100917 Answers
8242 Consultations

On the facts stated, P appears to have a substantially stronger title than a person merely claiming an interest through B.

  1. Rights of B's descendants

If Y acquired the property from an unrelated third party through a registered sale deed in her own name, the starting position is that the property was her property. If she subsequently executed a registered sale deed conveying it to P, P's title would ordinarily flow from that registered conveyance.

The descendants of B cannot acquire an interest merely because B was Y's son or because they assert that the property was somehow ancestral. If they claim that the property was actually joint/ancestral property, or that Y's purchase or subsequent sale to P was legally ineffective, the burden would generally be upon them to establish the factual and legal basis of that claim.

The mutation and payment of rent in P's name are supportive circumstances, although mutation by itself is not conclusive proof of title.

The alleged "document" said to establish B's rights is therefore important. Until that document is produced and examined, it is difficult to say what right, if any, it creates.

  1. What can P do now?

Given P's age and the long period of possession without any suit or formal objection, I would not wait until an actual dispute is filed.

First, P should collect and preserve the complete title chain: Y's original sale deed, Y's sale deed in favour of P, mutation records, rent/property-tax records and other possession-related documents.

If there is a genuine concern that the alleged document may surface later, one practical step is to conduct an appropriate title/document search in the relevant registration and revenue records to determine whether any earlier deed, settlement, partition or other instrument exists which could explain B's alleged claim.

If the title documents disclose a genuine cloud over P's title, a civil proceeding for appropriate declaratory/injunctive relief may be considered. But I would not recommend filing litigation merely because somebody is making occasional verbal assertions, without first identifying what document or legal basis they rely upon.

The fact that no objection or suit has apparently been brought for more than fifty years is certainly relevant, but long possession alone should not be treated as an automatic answer to every possible title claim. Limitation and adverse possession depend upon the nature of the alleged right and the manner in which possession has been held.

  1. Transfer to P's children

If P has clear title and wishes to transfer the property during her lifetime, the appropriate instrument would ordinarily be a registered gift deed, particularly where the transfer is intended to be without consideration.

However, the manner in which the gift is structured matters. If P wants to retain the right to live in or use the property during her lifetime, that should be expressly protected in the deed rather than left to an informal understanding.

Alternatively, depending upon her objectives, a family settlement or other properly structured transfer may sometimes be more appropriate. The choice should be made after considering whether she wants to retain possession, income, control or a life interest.

I would particularly avoid executing a transfer merely on the assumption that the verbal claims of B's descendants are irrelevant. Before transferring the property, the entire title chain and the alleged document referred to by B's descendants should ideally be examined. If the title is clean, a properly drafted and registered lifetime transfer can provide considerably greater certainty than leaving the property to be dealt with after P's death.

Indu Verma
Advocate, Chandigarh
312 Answers
10 Consultations

Dear SIr/Madam,

In the circumstances mentoned in your query the best way should be that the P transfers the property to her children by way of gift deed mentioning the chain of the property. This way, she will be able to remove all hurdles and possible disputes with B and his legal herirs.  

Ganesh Singh
Advocate, New Delhi
7345 Answers
16 Consultations

1. there is right title or interest of B's descendants in the property as P is the absolute owner of the property.

2. she may gift the property to her children by way of registered Gift deed or by way of Sell.

 

Nadeem Qureshi
Advocate, New Delhi
6381 Answers
302 Consultations

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