• Gift deed

My grandfather on my mothers side wrote a will in which he mentions the following with ref to a plot of land in our home town. ''This plot is a ishta dan or gift to my daughter and her husband ( my fathers name is mentioned here) and the children born of them (we were not born when this will was written so are not named)". Now my sister is asking my mother that she should be given the complete property as my mother is the sole owner of the property as it is a gift deed and my mother can dispose of the property as she pleases. Pl can you let me know that if the above statement in the will constitutes as a property gifted to only my mother or do my father and both of us children have an equal share in it. My father is even mentioned by name in this will which is registered. The said property is in Trivandrum District of Kerala.
Asked 1 year ago in Property Law from Trivandrum, Kerala
Religion: Hindu
1) as per will property is gifted to your mother and father and unborn children 

2) Transfer to unborn persons is invalid. 
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator. 

3) your mother is not absolute owner of property as your father had equal share in property 
Ajay Sethi
Advocate, Mumbai
44472 Answers
2585 Consultations

5.0 on 5.0

1) As stated clearly by your grandmother's express will that the property must go to her daughter and son in law and thereafter to the children born to them, there arises no doubt that you have an equal entitlement as your sister.

2) If any partition or transfer has to happen to the property while both your parents are alivethey both have to sign the relevant documents. Now as the will has stipulation about you children being  made heirs to the property, both your consent would be required for any further action.

3) Your sister's claim is not viable in law and you can resist it in a court of law if need be.
S J Mathew
Advocate, Mumbai
2233 Answers
110 Consultations

5.0 on 5.0

The donees of the property are your parents and their children. Your sister is one of the donees. So if your parents have two children the share of your sister is only 1/4th. Your mother who too has a 1/4th share in the property can gift only her share to your sister, not beyond it. 
Ashish Davessar
Advocate, Jaipur
22966 Answers
631 Consultations

5.0 on 5.0

Your observation is absolutely spot on and correct. The property has been bequeathed as a GIFT in favour of your mother and her husband (your father) and the children born to them ( which would mean both you and your sister). Thus apart from your mother, your father and his two children (which would mean you and your sister) are the equal and joint holders to the property. 
Your mother cannot transfer the property on the premises that she alone is the absolute owner of the property in favour of your sister, and also your sister cannot compel your mother to effect a transfer (either in the form of a GIFT DEED Or Release or WILL) absolutely in her favour, this action can be challenged by you before a competent civil court.
Kiran N. Murthy
Advocate, Bangalore
987 Answers
86 Consultations

5.0 on 5.0

 1. As per the wordings of the WILL, the property was bequeathed to your mother, father and the children born out of their wedlock in the future.However for the exact reading of the WILL , we need to see the document content.

2. The wordings means the property was bequeathed to your mom and her family comprising husband and children.
3. Your mom alone cannot decide about dispersing it property though it was given by her father  , as she , her husband and all children born out of the wedlock have equal share in it . 
A WILL  is interpreted on its words content , If the WILL is bequeathed only addressing your mother and entrusted her to take care of the family , then only she has the right and she can disperse/transfer it to anyone as she wants .
If it was bequeathed to your mother and father and their future children then all are beneficiaries and your mother cannot gift this to anyone or disperse it without consent of other Parties of the WILL.
It is advisable you contact a lawyer and show the WILL , who will tell you how it can be worked out. If you can send Copy by mail or upload the same we can help you with that.
Thresiamma G. Mathew
Advocate, Mumbai
1515 Answers
134 Consultations

5.0 on 5.0

In the strict legal sense, this property devolves equally on all i.e., your mother, father, and their children if the will is to be acted upon.
However it may depend on the joint decision taken in the family to partition or distribute the property accordingly. 
T Kalaiselvan
Advocate, Vellore
34587 Answers
373 Consultations

5.0 on 5.0

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