If you are stuck in such a situation, here is what to do.

Mr. Rajesh and his family from Vishnupur are facing a distressing situation concerning their ancestral property. After the demise of his father, Mr. Mohan, the property was to be inherited by four legal heirs: his mother, Mrs. Sunita; himself; his elder brother, Mr. Suresh; and his younger brother, Mr. Alok. The property remained undivided and had an outstanding loan, which Mr. Rajesh, being the only one with a stable job at a public sector undertaking, was diligently repaying.

The family was wary of Mr. Alok, who had a notorious reputation for cheating people, including his own in-laws, out of their assets. Fearing he would manipulate their mother, the brothers decided against partitioning the property. Their fears materialized after their mother, Mrs. Sunita, passed away. She was illiterate and used her thumb impression for all official signatures.

Suspecting foul play, Mr. Rajesh checked the property records online and discovered that Mr. Alok had managed to get a gift deed registered, stating that Mrs. Sunita had gifted her entire share of the property to him. This was alarming, as the family knew Mrs. Sunita would never have done so willingly. Their suspicion is further supported by video footage showing Mr. Alok physically mistreating his mother during her illness. Moreover, on her deathbed, Mrs. Sunita had confided that Mr. Alok had stolen all her jewelry from her locker. Now, Mr. Rajesh and Mr. Suresh are seeking legal recourse to nullify this fraudulent gift deed and secure their rightful inheritance.

Advice in such cases

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Gather All Documents: Collect all relevant paperwork, including the original title deed of the property, death certificate of the patriarch (Mr. Mohan), a copy of the contested gift deed, loan account statements, and any proof of loan repayments made by you.
• Preserve All Evidence: Securely store any evidence that proves coercion or fraud. This includes the CCTV footage, photographs, and contact information of any potential witnesses who can testify about the undue influence or the victim’s state of mind and health.
• File a Civil Suit: The primary legal remedy is to file a suit for cancellation of the gift deed in the appropriate civil court. This suit should be based on grounds of fraud, coercion, and undue influence.

Applicable Sections of Law

Challenging a gift deed involves several key statutes of Indian law:

• The Indian Contract Act, 1872: A gift deed is a type of contract. For it to be valid, consent must be free. If consent is obtained through Coercion (Section 15), Undue Influence (Section 16), or Fraud (Section 17), the contract (the gift deed) becomes voidable at the option of the party whose consent was so caused. Given that the mother was elderly, unwell, and illiterate, a strong case for undue influence can be made.
• The Transfer of Property Act, 1882: Section 122 defines a ‘gift’ as a voluntary transfer of property without consideration. If the transfer was not voluntary, it does not qualify as a valid gift. Section 126 allows for the revocation of a gift in cases where there was no free consent, such as in instances of fraud or undue influence.
• The Bharatiya Nyaya Sanhita, 2023 (BNS): While the property dispute is civil, the associated actions can be criminal. The acts of violence, threats, and theft can be prosecuted under the BNS. Relevant sections may include those pertaining to causing hurt, criminal intimidation (Section 351), theft (Section 303), and cheating (Section 318).
• The Hindu Succession Act, 1956: This Act establishes the rightful shares of all legal heirs in the ancestral property after the owner’s death, forming the basis of your claim.

If you are the complainant

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• File a Suit for Cancellation: Immediately file a civil suit seeking the cancellation of the gift deed. The suit should also seek a declaration that the deed is null and void due to fraud and undue influence.
• Seek an Injunction: Along with the suit, file an application for a temporary injunction to restrain the brother (Mr. Alok) from selling, leasing, mortgaging, or creating any third-party rights over the property until the case is decided by the court.
• Lodge a Criminal Complaint: Based on the evidence of physical abuse (CCTV footage) and theft (of jewelry), you can file an FIR against the brother. A criminal investigation can put pressure on the accused and the evidence gathered can be useful in the civil case as well.

If you are the victim

If you are the person who has been accused of obtaining a property through a fraudulent gift deed, here is what you should do:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Prepare Your Defence: The burden of proof will be on you to show that the gift was made voluntarily and without any influence, especially when the donor is an elderly and illiterate person. Gather evidence to support your claim, such as testimony from witnesses who were present during the execution of the deed.
• Prove Valid Execution: You must demonstrate that the donor (your mother) fully understood the contents and consequences of the gift deed before giving her thumb impression. Evidence from the sub-registrar’s office or witnesses to the registration can be crucial.
• Respond to Legal Proceedings: Do not ignore any legal notice or court summons. Engage a lawyer to file a detailed written statement in court, refuting all allegations of fraud and coercion and presenting your side of the story with supporting evidence.

How the police behave in such cases

Police generally view property disputes as civil in nature and may initially advise the parties to approach a civil court. They are often reluctant to intervene in what appears to be an internal family matter. However, if there is clear and compelling evidence of a criminal offence, such as assault (proven by CCTV), theft, or criminal intimidation, they are duty-bound to register an FIR under the relevant sections of the Bharatiya Nyaya Sanhita (BNS) and investigate the matter as per the procedure laid down in the Bharatiya Nagarik Suraksha Sanhita (BNSS). A lawyer’s intervention can be instrumental in ensuring the police take the criminal aspect of the complaint seriously.

FAQs people normally have

What evidence is required?

To successfully challenge a gift deed on grounds of coercion and fraud, you will need strong evidence, such as:

• The registered Gift Deed in question.
• The parent title deeds of the property.
• Death certificate of the original owner to establish succession.
• Proof of the donor’s vulnerability, such as medical records, and evidence of illiteracy.
• Direct evidence of coercion or undue influence, like the CCTV footage of assault, audio recordings of threats, or testimony from credible witnesses.
• Proof of the family relationship and the shares of the legal heirs.
• Any evidence of the accused’s past fraudulent conduct to establish a pattern of behaviour.

How long will the investigation take?

The timeline can vary significantly depending on the legal route taken:

• Civil Suit: A suit for the cancellation of a deed is a long-drawn process. It can take several years for a decision at the trial court level, followed by potential appeals in the High Court and Supreme Court. The process involves filing the suit, replies, framing of issues, evidence, arguments, and finally, the judgment.
• Criminal Investigation: A police investigation following an FIR has procedural timelines under the BNSS, but the subsequent court trial can also take a considerable amount of time. However, a parallel criminal proceeding can sometimes expedite a resolution or settlement in the civil dispute.

Advocate Sudhir Rao, Supreme Court of India