he Bombay High Court ruled on Wednesday that no part of an ancestral family property can be ‘gifted’ away. The court in a landmark order while resolving the dispute over a 69-year-old gift deed declared as void the document dating back to 1941, which said that Miraj resident Mallapa had gifted a portion of his ancestral property to his second wife Chandrabai ‘out of love’.
Referring to Hindu laws, Justice C.L. Pangarkar opined that “coparcener” or co-heir had no power to gift a joint family property, unless he is the sole surviving legal heir.
The Hindu laws of succession and inheritance are usually governed by two major traditional legal treatise—the Dayabhaga school that applies to Bengal and Assam and Mitakshara, which governs the rest of India.
According to Mitakshara, each “person on his or her (following the 2005 amendment giving a daughter equal property rights) birth acquires an equal interest with his/her father in the joint family property”. However, under Dayabhaga as long as the father is alive, he is the master of all properties whether ancestral or self-acquired.
Justice Pangarkar pointed out that as per Mitakshara, a person can gift a portion of the family property only during for certain eventualities — “during distress for the sake of the family and especially for pious purposes’’.
The case before the court related to a property in Miraj belonging to the Isapure family. The property was divided between Mallapa Isapure’s two wives and their sons in 1959. Subsequently, Mallapa’s second wife Chandrabai claimed that in 1941 he had gifted her a portion of the property that was now in the possession of the sons of the first wife.
