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Should I gift or Will my property to my children?

Representational image

Representational image

Papa, do you want us go through the long legal process and subject us to property disputes after you, why don’t you transfer this flat to us now, don’t you trust us upset Jatin bangs the phone on his father. The father and son often fight on this subject and it’s a regular affair now. 
Jatins father was still not sure if gifting his house to his only son is the right decision. He is worried if Jatin and his wife would continue to take care of him and give him the same respect after he gifts away his most valuable asset. Many elderly parents are caught in this age-old dilemma of gifting property during life vs passing it on through a Will.

Defining a Gift

As per Section 122 of Transfer of Property Act, 1882 Gift? is defined as the transfer of certain existing moveable and immoveable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee. One can give away their assets to their loved ones either during life called as Gift? or after demise i.e. through testamentary termed as ?Will. While the Gift takes place immediately, the Will is operational only after death.

Revocation of a Gift

Gift can be revoked but only under certain circumstances

  • By Mutual Agreement -Donor and Donee may agree that the gift shall be revoked on happening of an event and only on mutual agreement and not mere at the will of donor. The condition revoking the gift must be express; it should not be merely in the form of a wish or desire. In other words, the condition on the non-fulfilment of which the donor may revoke the gift must be expressly laid down in the gift. It is necessary that the condition of revocation is made at the time of gift and not afterwards. 

  • By Rescission as Contracts – Section 19 of the Indian Contract Act provides that ?Where consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained. As we know Gift is gratuitous transfer of ownership made voluntarily and if it could be proved that the transfer was not made voluntarily the Gift may be revoked by the donor. 
Subsequent Conduct of donee irrelevant and Judgement by Karaikal District Tribunal
A father gifted his house in anticipation of his son staying with him, paying certain sum for living and taking care of him in old age. In case if son fails to take care of father and does not pay for his living the father solely cannot revoke the gift and take back the house. So, the subsequent conduct by donee cannot become ground for revocation of a valid gift. Having said that the recent landmark judgement may pave way for fight back to many such elderly parents who are suffering and repenting gifting their property to their children.
The case was filed by an elderly woman who complained that her son was not taking care of her and he was not even offering her basic amenities of life after she gifted him the property. The tribunal bench of Karaikal district in Tamil Nadu passed the order declaring the transfer of property to the son void and restored it to the mother under sections 4(2) and 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act. 2007. 
Gifting through revocable Private Trust

The biggest dilemma of gifting asset to legatees during life is loss of control over the asset and losing power to call back the gift if need arises. A revocable private trust which gives power to recall the assets and wind up the trust as and when desired could be the perfect answer to this dilemma. The assets gifted in the private trust can be passed on to beneficiaries as per terms mentioned in the trust deed without going for any court order like probate or letter of administration. This will not only avoid the delays but will also minimize the chances of family disputes for deceaseds estate. While setting up a revocable private trust is good option to retain control on assets but one should evaluate the costs related to stamp duty on gifting assets, setting up and managing the Trust before taking any decision on this. 

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Legal

Karnataka High Court says wearing hijab non-essential practice in Islam; upholds ban

Published

3 years ago

on

March 15, 2022

By

Radhika Dhawad | Bengaluru

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Representational image

The Karnataka High Court on Tuesday upheld hijab ban by dismissing petitions filed by a section of Muslim students from the Government Pre-University Girls College in Udupi seeking permission to wear hijab inside classrooms.


The court upheld the state government ban by saying, The prescription of school uniforms is a reasonable restriction.


The court further said hijab was not an essential religious practice in Islam. However, the petitioners are likely to challenge the ban in the Supreme Court.


“Met my clients in Hijab matter in Udupi. Moving to SC soon In sha Allah. These girls will In sha Allah continue their education while exercising their rights to wear Hijab. These girls have not lost hope in Courts and Constitution,” lawyer Anas Tanwir wrote in a tweet.

The court was answering three key questions on the controversy namely:
1. Whether wearing hijab is an essential religious practice in Islamic faith protected under Article 25?
2. Whether prescription of school uniform is violative of rights
3. Whether government order on February 5 was issued without application of mind and manifestly arbitrary?


A three judge bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi delivered their verdict on the ongoing hijab controversy at 10.30 am today.


Ahead of the hijab row verdict, Section 144 was imposed in Bangalore and educational institutions remained closed.

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Legal

SC grants bail to Rajiv Gandhi’s assassination convict AG Perarivalan jailed for 32 years

Published

3 years ago

on

March 9, 2022

By

Radhika Dhawad | New Delhi

Rajiv Gandhi

Rajiv Gandhi

The Supreme Court, on Wednesday afternoon, granted bail to AG Perarivala, one of the seven convicts in former Prime Minister Rajiv Gandhi assassination case.


However, the remission of his life imprisonment is pending before the President of India. AG Perarivala was serving life sentence and was jailed for almost 32 years.


As per the SC order, Perarivalan would have to follow the conditions of release and would have to report before the local police officer every month. 

Granting him bail, the court, in its order, said: Since Perarivalan has already undergone sentence for more than 30 years, we are of the considered view that he is entitled to bail in spite of the vehement opposition by the Additional Solicitor General Additional KM Nataraj.
On May 21, 1991, he was accused of purchasing an eight-volt battery used to trigger the belt bomb that killed Gandhi. Perarivalan was arrested when he was 19 and was sentenced to death in May 1999.

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Legal

Supreme Court to allow journalists inside courtrooms for physical hearing of cases

Published

4 years ago

on

October 21, 2021

By

Karan Pareek | New Delhi


The Supreme Court of India, on Thursday, October 21, resumed hearing of cases and pleas in the physical mode for the first time since March 2020, when the COVID-19 pandemic broke out in India.
The Supreme Court has recently issued new SoPs for hybrid hearings as per which all cases on Wednesdays and Thursdays to be heard only in the physical presence of the counsels/parties in courtrooms.
Along with this, SC also decided to allow media persons inside the courtroom during the physical hearings. However, journalists would have to strictly adhere to COVID-19 related norms and protocols.
?With the physical hearing in the Supreme Court of India commencing tomorrow (Thursday, 21 October 2021), it has been decided to allow the media persons, subject to usual COVID restrictions, into the courtrooms for covering the proceedings,” said the top court in a press note.
Supreme Court heard cases through video conference since March last year due to the pandemic and several bar bodies and lawyers demanded that the physical hearings should be resumed immediately.

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