Gift deed
Adv. Deepak
(Querist) 25 November 2010
This query is : Resolved
Father made a gift of 1RK flat in the name of son and daughter in law. Because of old age, he could not move out of bed. He called a notary, paid stamp duty and signed in front of notary. It is not registered. In the meantime, father died. How the son can rectify the transaction. What are the remedies to correct the error of not registering with the registrar? Regds.
adv. rajeev ( rajoo )
(Expert) 26 November 2010
Gift deed is compulsorily registrable document. Notarization cannot work out. For registration person who executes the deed should be present. Now it is gone. Let him give a wardi to the concerned revenue/CTS authorities to enter his name on the basis of the gift deed.
A V Vishal
(Expert) 26 November 2010
Mr Deepak,
You have not stated how many children the testator had and whether the flat is self acquired or ancestral property of the testator. If your client is the only child then there is no problem in mutating the names in the revenue records, however, if there are other legal heirs then all the circumstances have to be considered before forming any opinion.
Adv. Deepak
(Querist) 26 November 2010
Resp. Mr. A.V. Vishal,
The testator had 3 children, One son expired. Wife of testator also expired. One son is alive in the name of whom the gift deed is made. Also there is one daughter who is married. The property is self acquired. You are requested to kindly educate me further on the matter. Regards. Deepak.
A V Vishal
(Expert) 26 November 2010
IN SUCH CASE, DOES THE DECEASED SON HAVE LEGAL HEIRS, IN CASE THERE ARE LEGAL HEIRS THEN THE PROBLEM IS THE TRANSFER/GIFT CAN BE CHALLENGED, FURTHER THE DAUGHTER ALSO MAY CLAIM SHARE, THE GIFT DEED IS HIT BY PROVISIONS OF "S.49. Effect of non-registration of document required to be registered. - No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall -
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered :
Provided that an un-registered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific preformance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.".
IN MY VIEW MUTATION IN YOUR CLIENT NAME IS POSSIBLE AFTER DULY TAKING A NOC FROM OTHER LEGAL HEIRS OR BY WAY OF RELINQUISHMENT.
HOWEVER, I SOLICIT VIEWS OF OTHER LEARNED FRIENDS ON THE ISSUE.
Adv. Deepak
(Querist) 26 November 2010
Resp. Mr.A.V. Vishal,
Deceased son was unmarried and had no legal heirs. According to your expert opinion, is there no other remedy to rectify the error. Kindly advise. Regards.
Deepak
A V Vishal
(Expert) 27 November 2010
IF DECEASED SON IS UNMARRIED ALSO, THE SISTER CAN CLAIM SHARE AFTER THE AMENDMENT ACT OF 2005 AS APPLICABLE TO HINDUS, LET THE CLIENT OBTAIN A NOC FROM HER. AS FAR AS MY EXPERIENCE TELLS, EVEN THE MUNICIPAL RECORDS CANNOT BE MUTATED IN HIS NAME IN THE PRESENT SCENARIO, FURTHER AFTER OBTAINING NOC IT IS ADVISABLE TO FILE A SUIT OF DECLARATION
Arun Kumar Bhagat
(Expert) 27 November 2010
Get the property gifted by the sister in respect of her share.
R.Ramachandran
(Expert) 27 November 2010
Since it is a self-acquired property, and the gift deed left by the deceased is ineffective, the property will to to the legal heirs (son and daughter) by way of inheritence.
For this first one has to obtain succession / legal heir certificate.
After such a certificate, if the daughter relinquishes her interest (which needs to be registered) in favour of the brother, then the entire property can go to the brother otherwise the property has to be shared equally between the brother and sister.
