There square measure numerous ways that} through which you’ll be able to transfer a property that you just own. It can be by the approach of sale, can, or gift. An unremarkably used methodology, particularly once transferring to a loved one or friend, is the execution of a present deed in favour of the recipient. Although no financial dealings are concerned, it’s still necessary to register the gift deed to form the valid transfer.
What is a Gift?
The definition of the Gift is outlined beneath Sec 122 of Transfer of Property Act,1882[1] that states: “Gift” is that the transfer of bound existing transferable or immobile property created voluntarily and inconsiderately, by one person, known as the donor, to another, known as the recipient, and accepted by or on behalf of the recipient. Acceptance once to be created. Such acceptance should be created throughout the life of the donor and whereas he’s still capable of giving. If the recipient dies before acceptance, the gift is void.
Gift under the Personal Laws[2]
Islamic law:- The conception of Gift, or Hiba in Muslim law has existed from the terribly beginning of the faith, circa. 600 A.D. whereas Muslim Law has not been shown to recognise the differentiation of land into estates, it will recognise the distinction between the possession of the land and therefore the right to get pleasure from it.
Unlike English Law, possession comes solely with the complete deed of the land and not with the easy possession or temporary abidance. Hiba is simply one amongst the aspects lined by the Transfer of Property Act beneath the term ‘gift’. it’s the transfer of the property and everyone right in conjunction with it, while not the expectation of any compensation.
Hindu Law
Gift may be a relinquishment inconsiderately of one’s title in property and therefore the creation of the proper of another. a present is completed solely on the other’s acceptance of the gift.
What things can be gifted
- To qualify as a legitimate gift, a factor should have the subsequent properties:
- It should be outlined and existing (can be each movable or immovable).
- It should be transferable.
- It ought to exist within the gift. It shouldn’t be a future property.
- It ought to be tangible.
Conditions when a gift can be revoked[3]
Section 126 of the Transfer of Property Act[4] provides the essential ingredients for the revocation of a gift:
The Donor associate degreed recipient should have an agreement whereby the gift will be revoked on the happening or non-happening of a particular event.
- The happening of this event should not rely on the donor.
- The condition relating to the revocation should be created clear to the recipient and therefore the same should be accepted by him at the time of accepting the gift.
- there should exist a ground, except need or failure of thought, on that a contract could also be rescinded
- Such a condition shouldn’t be extrajudicial or immoral and may not have unwell effects on the gift property.
- Section 126 is controlled by sec. 10. As such, a clause within the gift deed fully prohibiting alienation is void visible of the provisions contained in Sec. 10
- A bonafide gift can’t be canceled unilaterally. The court has to be concerned so as to revoke a bonafide gift.
Is registering a gift deed is mandatory?
Registering a present deed with the sub-registrar is obligatory as per section seventeen of the Registration Act, 1908, and as per section 123 of the Transfer of Property Act[5]. If you don’t do that, the transfer is going to be invalid. within the Sec 17 of the Registration Act, it’s such as that, the gift of immovable property is to be registered.
How to register a gift deed?
Registration of gift deed is finished as per the provisions of the Registration Act, 1908[6]. Common steps concerned within the registration method are:
The property in question should be valued by associate degree approved valuation knowledgeable.
The appropriate taxation and transfer duty should be paid. taxation varies for men and girls and is usually lower for ladies. taxation is subject to the state list and therefore varies from state to state.
Case Law
Dinabandhu Mondal v. Laxmi Rani Mondal [7]
Recently Calcutta High Court: petitioner appealed in the high court of Calcutta challenging the judgment whereby a gift deed was held as void and donee of the deed were restrained from claiming the title in the gifted property.[8]
Respondents herein were the plaintiffs in a suit filed for setting aside of a gift deed vide which the suit property had allegedly been transferred to the petitioners herein (defendants in suit). Respondents also sought a permanent injunction restraining petitioners from claiming title over the suit property. The trial court ruled in favor of the petitioner-defendants and dismissed the suit. However, the appeal filed against the said judgment was allowed and the suit was decreed in favour of respondent-plaintiffs. Aggrieved thereby, this second appeal was filed.
The Court opined that it is not necessary for the validity of a gift deed that it should be registered by the donor himself, and subsequent registration of a deed of gift after the death of the donor at the instance of the donee does not violate Section 123 of the Transfer of Property Act, 1882[9]. It was observed that the burden of proof may be reversed if the transaction appears to be unconscionable, but the same could not be proved in the present case. Thus, the appeal was allowed and the decision of the trial court was restored.
[1] The Transfer of Property Act,1882, No. 04, 1992 (India).
[2] Y. Shrinivasa Rao, The deed of gift , Articles On Law(May 26, 2020, 10:04 AM), https://articlesonlaw.wordpress.com/2013/01/13/the-deed-of-gift-2.
[3] Nidhi Verma , Can a gift deed be challenged in India , legal service(May 28 2020, 3:00 AM), http://www.legalservicesindia.com/article/2462/Can-a-Gift-Deed-be-challenged-in-India.
[4] Supra at 1.
[5] Ibid .
[6] The Registration Act, 1908, No. 16, 1908 (India).
[7] Dinabandhu Mondal v. Laxmi Rani Monda, 2019 AIR (Cal) 232.
[8] Devika, Registration of gift deed after death of the donor, at the instance of donee, does not offend S. 123 of Transfer of Property Act SCC Online(May 27, 2020, 12:30PM), https://www.scconline.com/blog/post/2019/07/08/cal-hc-registration-of-gift..
[9] Supra at 1.
This article is authored by Vaishnavi Pathak, Student of 2nd-year B.A. LL.B (Hons.) at Dharmashastra National law University.
Also Read – Procedure for Revocation of Gift Deed
