Anonymous
Asked July 04, 2016

Brother Challenging my Father's gift deed

  • 1 Answer
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We are Two Brothers and One Sister, I am youngest Son. My Father got the property share from my Grandfather through Registered Partitioned deed during Grandfather’s Life Time. Now it is in my Father’s name and he was constructed 5 Houses (2 Houses in Father Name and 3 Houses in Mother Name) on that place and earning House Rents from these Five Houses. My Father is having another commercial land with him. Recently my Father was transferred his commercial land to my Elder Brother through Gift deed and also earlier days given some Lakes of amount to do the business. When I questioned to my Father for this issue, my Father realized and asked my Brother to give share to me on given commercial land. My Elder brother refused to give share to me on commercial land. Then my Father was realized with this issue and Recently My Father and Mother transferred the remaining property (having constructed 5 Houses) which is received from Grandfather to me through Gift Deed. Recently my Brother send a lawyer notice to my Father, Mother, myself and Panchayet E.O., stating that he is one of the shareholders on Grandfather given property. Please advise us should we react on this lawyer notice?

Answer 1

Answer by Sammanika Rawat, Lawfarm Researcher:

 

Since you have not mentioned your religion, we are assuming that you belong to a Hindu Undivided Family. 

In Hindu law, the family which has not undergone partition is known as Hindu undivided family and the partition is governed by the Hindu Succession Law. We would like to brief you with the concept of partition: Basically there is one karta (the head of the family who owns the ancestral property). All those members of the family who have inherited rights over the property are known as Coparceners. After the partition the property is equally divide among the coparceners.

 

We would like to share with you that as per the Hindu Succession law, the 'ancestral property' is divided into equal parts within three degrees. Here, your grandfather's property will be divided among your father, his sons (you and your brother) and their sons (your sons) equally during his lifetime.

If he (your grandfather) is not alive, then the property inherited by your father will again be divided into three degrees. All the three siblings will get equal shares (as now the law recognises the rights of daughters in the ancestral property, during the lifetime of her father).

 

 A coparcener does not have absolute rights over the property he has received  a share of from partition. Hence, your father cannot transfer the entire ancestral property to you. He can only gift 'his share' (i.e. the  portion  which your father received after equal partition among the family members) to you; if only he himself is a coparcener along with you and your brother i.e. your brother receives equal share as you and your father.

 

Please understand that the 'commercial land'  given by your father to your brother was not an ancestral property and was 'self acquired' by your father. Hence, unless he gifts you a share in the same, you cannot claim a right on that property. While the property you've acquired is an ancestral property and hence your brother has equal rights in the same.

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