My father-in-law gave a share of his property to my wife when we got married. Later on, I realized that a major share of the property went to her brother. Is it possible to claim equal share?
While answering this query we are assuming that your father-in-law has made a gift to his daughter (who is your wife) of a certain share of his property, either by executing an instrument (a gift deed or otherwise) in her favour so as to give effect to the transfer, where the property is immovable in nature, and/or by transferring cash or securities in her name and/or by physically delivering other movables such as jewellery and has also similarly made a gift of a major share of his property to his son (your wife’s brother).
We are also assuming that your father-in-law has gifted each share from his self-acquired property during his lifetime and not from his undivided share in a coparcenary property.
If your father-in-law has made the aforesaid gifts and/or executed the gift deed without any fraud being played on him or without any misrepresentation of facts or any undue influence and has exercised his free will in doing the same and if for the immovable property at least a gift deed or other similar instrument has been executed and the same has been registered under the provisions of the Registration Act, 1908, then the same cannot be challenged.
As per the provisions of the Act, if a document is compulsorily registrable and if it is not registered, then the transaction desired to be made by the document will be inoperative so far as the immovable property is concerned. Thus, if your father-in-law has transferred immovable property in favour of either of his children, an instrument (normally a gift deed) would need to be executed and registered or else the transfer, including in favour of your wife’s brother shall be inoperative.
However, if the gifts have been made in the manner aforesaid and if your father-in-law is alive, he is the only person who can challenge it. He may do so if it was not his intention or he was coerced into making the gift or executing the deed in favour of his son. You or your wife cannot challenge the gift as your father-in-law is alive and is free to deal with the property as he wishes.
As per the provisions of the Transfer of Property Act, 1882, a gift must be made (i) voluntarily; and (ii) without consideration. Further, two other pre-requisites of a valid gift are (i) an offer; and (ii) its acceptance. A gift is complete only after the donee, or receiver, has given his acceptance and actually accepted the property being gifted. In the eventuality that your father-in-law is deceased, your wife may challenge the gift where it comprises of immovable property to her brother on the ground that one or more of the aforementioned four conditions have not been fulfilled.
Shabnum Kajiji is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
Queries and views at