Dear Sir, 1. Our father who died on 2015 may with out any will. And our father with his own earnings purchased a housing plot an d 5 acres of land and registered on our mother's name in the year 2003 and constructed a house. 2. Our mother is a house wife and does not have any earnings. 3. Our mother executed and registered a Deed of Gift (Settlement) of the same housing plot and 5 acres of land favouring our brother in the year 2015 december 4. Is our mother has any right to execute and register such a Deed of Gift (Settlement), where she never earned ? Does this transaction comes under 'Benami Property (Prohibition) Act, 1988' ? 5. We are 2 daughters and 1 son and have equal share of that property. 6. All we three are married before father’s death 7. Can we challenge the validity of the said Deed of Gift (Settlement) under 'Benami Property (Prohibition) Act, 1988' ? 8.Please kindly advice. Thanking you, Ms. Suhasini Please reply
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
1) your mother had no source of income
2) property was bought by father in name of mother for benefit of joint family
3) you can file suit for partition to claim your share in property
4) also to set aside gift deed executed by mother in favour of brother
Hi,
The property was in your mother's name and she is absolutely free to gift it to your brother. You can not challenge the validity of gift deed if it is made of free will. Being the sole owner of the property and the property was registered in your mother's name, thus your mother has right to gift the property to anyone she likes.
1. Your mother was the legal owner of the property that she had gifted. So she had the right to gift the property of which she was the owner. The only remedy for you to impeach the gift is to file a suit for declaration of your deceased father's title to the property as he paid the sale consideration thereof and registered it in your mother's name.
2. If the court declares your deceased father as the title holder of the property then the property will devolve through succession on his heirs.
1. Yes, this property was a benami property of your deceased father as per Benami Property (Prohibition) Act, 1988, who purchased it in the 'benam' of your mother who had no earning of her own,
2. Had it been purchased after the year 1988, your mother would have become its absolute owner,
3. File a declaratory suit praying for declaration that the said property belonged to your deceased father who had purchased it in the benam of your mother for which the gift deed registered by your mother is invalid,
4. Once it is so declared, you can file a partition suit claiming your share in the said property .
Is our mother has any right to execute and register such a Deed of Gift (Settlement), where she never earned ? Does this transaction comes under 'Benami Property (Prohibition) Act, 1988' ?
Though your father funded the purchase of this property, he bought it on your mother's name. So it becomes your mother's own and absolute property, meaning thereby she has marketable title over the property. Also it comes under married women property, hence she is the absolute owner of the property and she has full rights in the property to dispose it in any manner as per desire and will and wish. Therefore the execution of git deed is valid and legal which cannot be disputed for any reason even by her own self.
Can we challenge the validity of the said Deed of Gift (Settlement) under 'Benami Property (Prohibition) Act, 1988' ?
It will not be maintainable. You will be fighting a losing battle, instead have an amicable talks within family members and get some share either trough property or in lieu by money or consideration.
yes you can challenge this transaction because your mother is only ostensible owner of the property. it is self acquired property of your father and all legal heirs including daughters have vested interest therein. it shall be devolve according to law of inheritance. this gift deed is void, you should file a suit for cancellation and validity of gift and partition of property according to the law of inheritance.
