Dear Sir, I have a property named after My Grandfather situated in Kolkata. The whole property is possessed by my Father and Younger Uncle. My Grandfather died leaving no will and the property became undivided property. My Grandfather had total 3 sons and 2 Daughters. After his death each of them had 20% undivided share. My father’s elder brother left home at an early age of 25 and now is untraceable and do not have any possession in the property like my Father and Younger Uncle has. In 2013 my Fathers Younger Sister (i.e. Younger Aunty) gifted her share (i.e. 20%) to my Father after that my Fathers total share became 40%. The gift was through Registered Gift Deed by paying Stamp Duty and Registration charges through Registrar office. Now the share in this property is as follows- 40% - My father (Holding possession in the Property) 20%- Younger Uncle (Holding possession in the Property) 20%- Elder Uncle (Not holding any possession in the property) 20%- Fathers Elder Sister (i.e. my Elder Aunty) (Not holding any possession in the property) In 2015 my Father expired and I am his only legal heir. After my Father’s death I shifted to my self-owned property and locked my possessed part. Now my Fathers Younger Sister (i.e. Younger Aunty) who gifted her share (i.e. 20%) to my Father through Registered Gift Deed by paying Stamp Duty and Registration charges through Registrar office is demanding her 20% share back saying that I gifted my share to your father and after his death I am entitled to my 20% share (but there is no such clause in the Gift deed). I have following questions regarding the case. 1. Is my Fathers Younger Sister (i.e. Younger Aunty) claim of asking her 20% gifted share back tenable in law after my Father’s death? 2. What will be my share in percentage 20% or 40% after my father’s death? 3. Since my father’s elder brother (i.e. Elder Uncle) is untraceable then how to sell the property, since he is having 20% right by birth. Remaining 80% right holders are ready to sell the property with 100% possession , but how to proceed in this case for sale?
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1) your aunt is not entitled to any share in property on father demise
2) on father death his 40 per cent share would devolve on your mother , you and your siblings
3) you ought to have filed missing persons report . After period of 7 years court proceedings ought to have been taken to declare uncle dead
1. After gift by your aunt to your father she has no more share left in the property and hence can not claim back her share anymore.
2.If you do not have sibling and mother alive then your share in 40% only.
3. Need a declaratory decree for his civil death.
4. To resolve the dispute once and for all file a suit for partition and declaration .
1. No, it is not tenable in law.
Her claim to get back her share which she had already transferred by a registered document to your father is not maintainable since her rights remain relinquished.
2. Your father's share of 40% in the property shall be shared by you and your mother equally.
3. You may have to file a suit for partition claiming your legitimate share and separate possession of the same after which you can sell the share of property that has been identified by a decree of court of law and allocated to you.
1. As per law, a Gift deed cannot be cancelled , hence after the death of your father , younger aunty , is not entitled to claim back the share already gifted by her in favour of your father.
2. After death of your father , his property would be devolved upon all his legal heirs equally .
3.If your said uncle is not having any legal heirs i.e. unmarried , and traceless more than 7 years , then after filing a missing report , you can get certificate from the competent authority .
- Further , after getting the said missing report certificate which is considered as death , other can sell the property amicably.
1. My Younger Aunty who gifted her 20% share to my father through registered gift deed. Now after my father's death she is saying that if the property is sold she wants money of her 20% share in cash otherwise she will go to court and say that gift was obtained by fraud, misrepresentation by my father and will declare the gift void ab initio. Is my Youngers Aunty claim tenable in law after my father's death? 2. Can i file suit for partition claiming my legitimate share and separate possession of the same. Is there any time limitation given under Limitation Act for filing suit for partition within which i have to file suit for partition or in case of ancestral undivided immovable property suit for partition can be filed anytime? 3. Sir in my Elder Uncle case we are unaware whether he is alive or dead whether married or not having childrens or not. If we declare him dead through competent authority then in future if he or any of his legal heir comes into picture then what should we do? 4.Can we all remaining right holders(holding 80%) sell the property with 80% rights and 100% possession without giving missing report by Competent Authority of my Elder Uncle(having 20% rights) so that purchaser will get 80% rights and 100% possession and in future if any problem comes regarding my Elder Uncle then it will be dealt by the purchaser of 80% rights and 100% possession?
1) aunt will not get any reliefs after lapse of so many years
2) suit for partition can be filed at any time
3) if he is declared dead by court and subsequently he is found alive he can claim his share
4) you can only sell your share in property
1. Gift Deed can not be cancelled or retrieved. So, your younger Aunty can not take back her gifted share of the said property.
2. Your share will 40% of the said property in the given circumstances.
3. You shall have to first declare your elder Uncle as dead as per law by following the legal procedure after he is stated to be missing for a period of at least 7 years. You shall have to send a notice in his name in his last known address. When the notice will come back undelivered, you shall have to publish the notice in two local Newspapers, one being in vernacular. Thereafter all the living legal heirs and/or their successors will be able to sell the said property.
4. You can sell of all your undivided 80% share of the said property through it will be ideal to sell of 100% of it after declaring your elder Uncle dead.
1. Your aunt's claim for her share or compensation in lieu is not legally maintainable. She cannot approach court at this stage if she feels that the gift deed was obtained fraudulently especially after three years of this registered transaction, it is barred by limitation and also since the donee is not alive she cannot file the case against the legal heirs at this stage, even if she files any case the court may not entertain the same for the above reasons or she may be fighting a losing legal battle.
2. You were advised to file a partition suit to claim your legitimate share in the property with separate possession, there is no time limit for filing suit for partition.
3. If in future they claim and their claim is approved by court then you may have to give their share proportionately if you are going to take their share also now by operating the said law.
4. You do not have any rights to sell the share of your missing uncle in the property, if you do so then it is illegal and the registrar would not allow you to sell the share of your missing uncle without a death certificate and legal heirship certificate.
You may better confine to your rights alone in the property instead of becoming greedy to sell his share also without any rights and get into a deep trouble in future.
1. After the death of your father , this Gift deed cannot be challenged /cancelled.
2. Yes,
3. Yes , if there is his legal heirs, then they can seek their share in the property left by your uncle .
- However ,before issuing the dead certificate , the police will try to trace his legal heirs .
4. Yes.