Gifting of immovable property is a popular mode of transferring
the ownership and possession of one's property in favour of
another without any consideration or money. A 'gift',
defined under Transfer of Property Act (TPA),
1882, is often the mode of transfer between family members.
However, a gift can also be validly made in favour of a person who
is not a family member of the donor.
'Gifting of Property'
A donor can only gift property which he/she owns at the time of
making the gift. In other words, gift of a property which the donor
is yet to fully acquire/own in future or is not in existence, would
not be legally valid. Parties should ensure that the Gift Deed
contains a clear and unambiguous description of the property being
gifted to avoid future disputes. Also, if the donor plans to gift
an undivided share in a property which he/she jointly owns with
one/more persons, the Gift Deed should clearly mention the
percentage of undivided share in the property which is to be
It is also important to determine whether the property in
question is a coparcenary property or a self-acquired one. While a
coparcenary property refers to property that is acquired or
inherited by the donor from his ancestors as per the rules of Hindu
Mitakshara law, the self-acquired property is bought by utilizing
one's own funds.
For a self-acquired property, the owner would not be required to
take prior consent from anyone before making the gift. However,
this is not the case with gifting one's share in a coparcenary
property. It is now settled law that in case one wishes to make a
gift of his/her undivided share in a coparcenary property, he/she
is first required to obtain prior consent from all other
coparceners (i.e. other family members who also have an undivided
share in the same immovable property which was acquired or
inherited from a common ancestor). A gift of an undivided share in
a coparcenary property would be valid only if all coparceners have
accorded their consent.
But remember prior to execution of the Gift Deed, the donor
should also disclose to the donee any debts or liabilities that
might exist on or against the property which is to be gifted. This
is a crucial disclosure which would enable the donee to take an
informed decision as to whether or not he/she wants to accept the
gift, given that the donee stands to become personally liable for
all the debts taken by the donor against the property at the time
of the gift.
Making a Gift Deed
Under Transfer of Property Act, a gift of an immoveable property
is considered valid only if the transfer of such property is
affected by way of a written document that is properly executed.
Oral statements or promises or mere delivery of possession of an
immoveable property, without executing a valid written instrument,
are not enforceable and are insufficient for transferring any title
of ownership in favour of the donee. Hence, the parties are
required to enter into a proper Gift Deed which should be signed by
both parties and attested by at least two witnesses.
Also, a gift is not considered complete until and unless it has
been accepted by the donee or on behalf of the donee. All these
steps should be completed during the lifetime of both donor and
Stamping, Registration and Mutation
Even though a gift of immovable property does not involve
payment of any money by the donee to the donor, applicable stamp
duty and registration fee is required to be paid. The rate of stamp
duty payable on a Gift Deed is the same as that which is payable on
a Sale Deed/Conveyance Deed. Further, a Gift Deed must be
compulsorily registered with the competent authorities, in the
absence of which it will be considered invalid. Lastly, the donee
must apply for mutation of the property in his/her favour, in the
records of the relevant local municipal authority.
Can a gift be revoked?
Once a gift of immovable property is made in favour of a donee,
a donor does not have the right to demand or seek monetary
compensation nor does he/she have the right to revoke/cancel the
gift at a later stage at his/her mere will. However, in some cases
parties may agree on a conditional gift wherein the gift may be
revoked upon the occurrence of a condition/event which is not
dependent on either party's will. This is in stark contrast to
writing a Will where an individual can revoke, amend and replace it
any number of times during his lifetime.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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