Gift law for muslims
Mohammed Ashraf
(Querist) 04 November 2011
This query is : Resolved
My Mother wants to gift me a shop and a flat in Mumbai,what is the correct procedure,I have 2 brothers and 1 sisters,please help for the legal proceedings,what should i do for this in detail
R.Ramachandran
(Expert) 04 November 2011
Muslim law does not discriminate the capacity to Gift/Donate on the basis of gender. As such, your mother can make the proposed gift - provided she is the absolute owner of the said properties.
She can gift the property to anyone that she likes - there is no restriction. It is not that she should give it to all her children or that she should give it to all her children equally. It is the pleasure of the donor to whom and how much, and what she wants to donate.
Unlike in the case of a WILL, where a muslim cannot give away more than 1/3rd property through WILL, in the case of GIFT there is no such restriction.
The following conditions should be fulfilled.
1. The properties should be in existence.
2. The person who wants to GIFT should be the absolute owner of the same.
3. The Donor should make a declaration of the Gift.
4. The Donee should accept the Gift.
5. The immediate possession of the properties Gifted away should be handed over to the Donee.
6. The Gift may be oral or in writing. There is no need for registration. Registration of the GIFT is optional, but preferable/desirable.
ajay sethi
(Expert) 04 November 2011
advisable to have gift made in writing have the document duly stamped and registered . it will save you legal complications later . on basis of gift deed have flat transferred in your name .
Sankaranarayanan
(Expert) 04 November 2011
i do agree with mr ramachandran, you follow his advise and do it.
Mohammed Ashraf
(Querist) 04 November 2011
what will be the registration and stamp duty charges for the shop and flat and do the society of the said properties can charge any transfer fees for gift deed,please guide
prabhakar singh
(Expert) 04 November 2011
The legal position told by Mr. Ramachandran about gift in Islamic law is perfectly correct.
The advice of Mr. Sethi is correct but a costly affair which abandons the privileges
a muslim has in relation to gift due to Islamic law.
Then i propose a mixture to drink.
If your mother is absolute owner of the properties proposed to be gifted then under Islamic law she can do it ORALLY WITH OUT ANY WRITING PUTTING PROPOSING YOU TO RECEIVE POSSESSION WHICH IF YOU RECEIVE EXCLUSIVELY THEN THEN AND THEIR YOU BECOME THE OWNER AS GIFT BY HER GETS COMPLETED IN LAW BY THESE ACTIVITIES.
NOW THE POINT IS THAT THERE IS NO DOCUMENT OF PROOF OF GIFT AND THERE ARE HEIRS LIKE BROTHERS AND SISTERS WHO MAY CREATE DISPUTE
AFTER DEATH OF YOUR MOTHER THAT IS WHY Mr. Sethi ADVISES TO GO FOR A REGISTERED GIFT.
BUT HIS PROPOSAL WOULD PROVE VERY COSTLY AFFAIR IN THE SENSE THAT IT'S COST WOULD EQUAL TO A SALE DEED.
THEN THE WAY OUT IN ALTERNATE CAN BE THAT YOU FIRST TAKE THE POSSESSION EXCLUSIVELY
OF ALL PROPERTIES GIFTED TO YOU ORALLY,THEN FILE A SUIT OF INJUNCTION AGAINST YOUR MOTHER AND BROTHER AND SISTER CLAIMING AS THE EXCLUSIVE OWNER AND POSSESSEE OF THE PROPERTIES GIFTED TO YOU ORALLY BY YOUR MOTHER.
IF YOU DOUBT THAT YOUR BROTHER AND SISTER WILL CREATE PROBLEM THEN FILE THE SUIT AGAINST YOUR MOTHER ALONE.
AND WHEN SUMMONS ARE SERVED MOVE A JOINT APPLICATION OF COMPROMISE TO BE MADE IN LOKADALAT AND THEN FILE THE COMPROMISE IN WHICH YOUR MOTHER ADMITS THE GIFT AND DELIVERY OF POSSESSION TO YOU AND YOU
ADMIT THE ACCEPTANCE OF GIFT AND THERE
AFTER BECOMING ABSOLUTE OWNER.ON THE BASIS OF SUCH A COMPROMISE THERE WOULD BE DECREE PASSED IN YOUR FAVOR AND THAT DECREE WOULD IN NO CASE BE ANY THING LESS THAN A REGISTERED GIFT DEED.
I HAVE YET ANOTHER ALTERNATE FOR A MUSLIM CASE WHICH HAS NOW BEEN BANNED IN UP BUT MUST BE OPEN IN MUMBAI,MAHARASHTRA.
THIS IS ALSO A FOOLPROOF WAY OUT FOR A MUSLIM GIFT CASE.
WHAT? YES! LET YOUR MOTHER APPOINT YOU HER
REGISTERED POWER OF ATTORNEY FOR ANY PURPOSE THOUGHT OF AND IN THE SAME DEED MENTION THE FACT OF ORAL GIFT WITH POSSESSION MADE BY HER TO YOU AND ACCEPTED BY YOU IN RECITALS[LAWYER WOULD REQUIRE SOME CRAFT AND ART TO DESIGN SUCH POWER OF ATTORNEY]AND YOUR PROBLEM OF FUTURE LITIGATION IS OVER.
Mr.Sethi is from Mumbai,consult him visiting his profile where his email and residential address as well as mobile phone number is available.
Let him know about this alternate hopefully he shall agree to work for you.
ajay sethi
(Expert) 04 November 2011
why i advise in writing is in case of transfer of flat from mother to son or within family by gift deed no transfer charges are levied by society
Shonee Kapoor
(Expert) 04 November 2011
BUt won't it attract stamp duty?
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 04 November 2011
BUT WHEN GIFT DEED IS TO BE REGISTERED I THINK THE SAME WOULD ATTRACT STAMP DUTY AND REGISTRATION CHARGES TO BE PAID IN SUB REGISTRAR OFFICE.I AM NOT VERY WELL CONVERSANT WITH CHS LAW APPLICABLE IN THE CASE AND FOR MUMBAI I HEAVILY RELY ON YOU ALONE?
OR YOU NOT CONVINCE WITH MY SUGGESTIONS???
IF,NOT PLEASE STATE REASONS.
prabhakar singh
(Expert) 04 November 2011
BUT WHEN GIFT DEED IS TO BE REGISTERED I THINK THE SAME WOULD ATTRACT STAMP DUTY AND REGISTRATION CHARGES TO BE PAID IN SUB REGISTRAR OFFICE.I AM NOT VERY WELL CONVERSANT WITH CHS LAW APPLICABLE IN THE CASE AND FOR MUMBAI I HEAVILY RELY ON YOU ALONE?
OR YOU NOT CONVINCE WITH MY SUGGESTIONS???
IF,NOT PLEASE STATE REASONS.
Sailesh Kumar Shah
(Expert) 07 November 2011
please go through :-
http://www.lawyersclubindia.com/experts/Tranfer-of-Shop-and-Flat-240031.asp
