Gift deed
Querist :
Anonymous
(Querist) 22 September 2011
This query is : Resolved
You are requested to give answers following:-
1. According to TPA, Can a donor revoke a gift made by him after delivery of the deed but before its registration?
2. According Section 122, is possession must or not?
ajay sethi
(Expert) 22 September 2011
1)a gift deed that has not been registered does not pass any title of ownerhsip to donee and is not valid. in addtion donee has to accept it during lifetime of donor
2)if it is invalid donor can revoke it . i presume donee has not accepted gift
3)Section 122 of the Transfer of property Act [for short,
the "TP Act"] defines 'gift' to mean the transfer of certain
existing movable or immovable property made voluntarily and
without consideration, by one person, called the donor, to
another, called the donee, and accepted by or on behalf of
the donee.
Acceptance by or on behalf of the donee must be made
during the life time of the donor and while he is still
capable of giving.
It would thus be clear that the execution of a
registered gift deed, acceptance of the gift and delivery of
the property, together make the gift complete. Thereafter,
the donor is divested of his title and the donee becomes the
absolute owner of the property
Guest
(Expert) 22 September 2011
I agree the same.
prabhakar singh
(Expert) 23 September 2011
Your question is dubious and dependent up on several circumstances for which you have not stated clearly.
The one aspect already dealt by Mr.Sethi.
The other case may be where the Donor And Donee both enter into execution of a deed of gift wherein it is incorporated that donor GIFTS With POSSESSION and donee accepts that,such a gift deed is properly executed paying proper stamp duty but there after ,the donor refuses to sign then it is not an invalid gift in eye of law and can not be revoked as donee can initiate proceeding for its registration against the donor.
Querist :
Anonymous
(Querist) 23 September 2011
Please specify "section 122 of TPA possession is must or not"? Please provide relevant case law,if any.
prabhakar singh
(Expert) 23 September 2011
122. “Gift” defined.—
“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
"without possession even a sale deed is not complete, what to talk of a gift"
Case laws as desired by you are:
1] commentary by gc subba rao on tpa 2](1997)2 scc 636 3](1996)4 scc 697
A gift must ordinarily be accompanied by possession.In [2]ibid the Apex court held proof of delivery of possession is a must.
In [3]ibid court opined that "possession"includes "constructive possession also" as there may be circumstances where not physical but only constructive possession could be granted.
kuldeep kumar
(Expert) 23 September 2011
if A want to gift his property to B which are adversaly claimed by D.B files a suit agaist D and makes A party.AS neither the possession not the title of A is solid can he make a gift of his property in the above mentioned conditions.
Guest
(Expert) 23 September 2011
Dear Kuldeep,
With particular reference to gifting of immovable property, along with Section 122 of the Transfer of Property Act, you may also have to look at the provisions of Section 123 of the said Act.
Section 123, ibid specifies as follows:
"123. Transfer how effected"
"For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."
"For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery."
"Such delivery may be made in the same way as goods sold may be delivered."
kuldeep kumar
(Expert) 23 September 2011
if a mortagage has possession of property and hold adverserly agaist a mortagagor.i think mortgagor is empowered to gift.
Guest
(Expert) 24 September 2011
Dear Kuldeep,
In a single query you have come up with other queries also, but with delinked manner. Why don't you specify, what is the real problem?
I know, you will come with some other question also after your query is replies.
Do you know even out of your latest query several questions can arise? Like;
1) What are the terms of mortgage;
2) Whether mortgaged by the owner or the donor of the property?
3) Whether mortgage was made before gifting or after gifting;
4) Has the currency of mortgage expired or the property can still be got released;
AND SO ON.
THIS IS MY SINCERE ADVISE TO YOU, IF YOU REALLY WANT PROPER SOLUTION TO YOUR PROBLEM, MUST COME FORWARD WITH THE COMPLETE FACTS, BUT NOT IN PIECE MEAL MANNER. PLEASE DON'T THINK THE EXPERTS ARE LIABLE TO ANSWER EACH OF YOUR FRAGMENTED QUERIES BY VISITING YOUR QUERY REPEATEDLY.
