Jinesh (none) 05 April 2018

Enforcibility of a deed of gift

Lately, I came accross a Deed of Gift (hereinafter "the said Deed") which is executed by and between two sisters. The said Deed is duly stampted and is also registered with the Sub-Registrar of Assurances. By virtue of the said Deed the Donor therein gifted her 50% undivided right title interest in a residential flat in favor of Donee therein.

The said Deed is attested only by ONE WITNESS; which contravines the provisions of section 123 of Transfer of Property Act, 1882

As per the aforesaid provision a Deed of Gift has to be attested by atleast two witnesses.

In such a scenario, i am of the opinion that the said Deed is unenforcable as the same does not meet the statutory requirements and hence till date the Donor is 100% owner in respect of a residential flat gifted therein.

To fill-in the aforesaid loop-hole, an execution & registration of another Deed ratifying the contents of the said Deed will be required which will be attested by two witness.

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4 Replies

R.Ramachandran (Advocate) 05 April 2018

Please indicate as to what is the value of the 50% share of the property?

What is the amount of stamp duty paid at the time of Registration of the Gift Deed?

Jinesh (none) 06 April 2018

Replying to Ramachandran Sir - The amount of Stamp duty paid is around Rs. 500/- as the gift is from a blood relative i.e real sister & valuation of such 50% would be around 60L

Replying to Singh Sir - I am willing to buy the property.

Yusuf Rampurawala 06 April 2018

you can make the donee a confirming party in your sale deed. so the deed will have both the donor and donee signing. as both are signing and confirming the transaction, any future challenge by either of them to the present sale with you, will be taken care of

R.Ramachandran (Advocate) 06 April 2018

As I suspected, the information provided by you goes to show that there is no valid GIFT at all.

The so-called GIFT Deed mentioned by you is not at all a recognisable GIFT DEED and on the basis of that GIFT DEED the alleged donee cannot claim any legally enforceable title, for the following reasons.

1. You said that the value of the 50% share of the property would be around Rs. 60 lakhs. The Stamp Duty Applicable for GIFT of immovable property worth about Rs. 60 lakhs cannot be a mere Rs. 500/- - whether the GIFT is between blood relatives or outsiders.

2. The GIFT DEED does not seem to have been registered with the Sub-Registrar's office. According to Section 17 of the Registration Act, 1908, any GIFT Deed involving immovable property whose value is above Rs. 100 is compulsorily registrable. If there is Non-Registration then the Document in question cannot affect the immovable property mentioned therein. In other words, non-registration would mean that the property remains unaffected by the alleged GIFT DEED i.e. no gift has taken place in the eyes of law.

You have to get a Fresh Gift DEED from the owner, and get it duly registered with the Sub-Registrar's office by paying applicable Stamp duty (not Rs. 500/-). Otherwise, practically there is no GIFT Deed in favour of the alleged donee.