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Ask Mint Money | If a gift deed for property is not registered, it shall be inoperative

Ask Mint Money | If a gift deed for property is not registered, it shall be inoperative
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First Published: Mon, Oct 17 2011. 09 20 PM IST

By Bloomberg
By Bloomberg
Updated: Mon, Oct 17 2011. 09 20 PM IST
Is the Hindu law of succession applicable throughout the country or does each state have a separate succession law? My father had inherited a property and now he is seriously ill. My brother is claiming that my father has executed a gift deed in his favour for the house and sent a legal notice asking me to vacate my portion. What should I do?
—Shauvik Sen
By Bloomberg
As per the Hindu Succession Act, 1956, the law governing Hindu succession applies to the whole of India, except to the state of Jammu and Kashmir.
With respect to the property inherited by your father and which your brother is now claiming has been gifted to him vide a gift deed executed by your father, you should ask your brother to produce the said gift deed to ascertain if it is an original document and has been registered. You could also conduct a search in the applicable sub-registrar office to ascertain if the gift deed has been registered.
Section 17 of the Registration Act, 1908 inter alia lists the documents for which registration is compulsory and “instruments of gift of immovable property” is one such document. Section 49 of this Act inter alia states that no document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein unless it has been registered. Thus, if the said gift deed has not been registered, it shall be inoperative.
If the gift deed has indeed been registered, only your father may challenge it if it was not his intention or he was forced to execute the same in favour of your brother. You can’t challenge the gift deed as you are not a party to it. As your father is alive and is free to deal with the property as he wishes, you have no interest in the property. It may be difficult for you to challenge the legal notice unless you can prove that your father was not in a proper frame of mind to execute the deed and was forced to do so and you have sufficient grounds to have the gift deed set aside.
My uncle has bequeathed some of his property to me and my family through a will. I am not married and my family comprises of my parents, an older brother and a younger sister. How is the property to be distributed?
—Y. Mistry
Section 97 of the Indian Succession Act, 1925 inter alia states that where property is bequeathed to a person by a will and words are added to denote a class of persons (for example, heirs, family and descendants) but don’t denote them as direct objects of a distinct and independent bequest or gift, then the person named is entitled to take the whole property, unless the will indicates otherwise.
So if your uncle’s will simply states that the property is to be inherited by you and your family, then you alone are entitled to it. However, if your uncle’s will does not use the word family in a generic sense and states that you and your parents, brother and sister are to inherit the property, then all of you will inherit the same jointly.
Shabnum Kajiji is Partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
Queries and views at mintmoney@livemint.com
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First Published: Mon, Oct 17 2011. 09 20 PM IST