Gift deed or sale deed
Querist :
Anonymous
(Querist) 17 November 2011
This query is : Resolved
First of all thank you very much to guide me with respect to previous queries.
In family settlement i have to settle one flat with my brother.
we mutually understood that brother will pay me 13000Rs per month for next 7 years.
shall i add payment condition in gift deed?
we planned to file gift deed in order to reduce stamp duty.
shall we go for gift deed or sale deed?
please advice.
prabhakar singh
(Expert) 17 November 2011
Stamp duty on sale and gifts are equal.Then obviously sale deed would be a better way where conditions imposed with regard to consideration payments in installments shall
never be an open question any where to be decided which in gift would always be.
Rajeev Kumar
(Expert) 17 November 2011
I agree with Prabhakar sir
Sailesh Kumar Shah
(Expert) 17 November 2011
Shri Prabhakar Singh,
Respected Sir,
In some states, Stamp duty is less, recently Mr.Barman informed in another thread that in West Bengal, stamp duty is less in gift deed.
Sailesh Kumar Shah
(Expert) 17 November 2011
As suggested by Shri Prabhakar Singh, sale deed would be better and practical in spite of that stamp duty is less in gift deed.
prabhakar singh
(Expert) 17 November 2011
hey dear Shah!
When authors do not disclose despite we write time and again its a mater of state how can be help it.??
I think in this respect authors do need help at local level our advises may keep them safe from bungling in these work if they avoid local level lawyers services and go to only village barristers or vasika navis then it their own risk.
We can NOT help such situation,nothing to feel about that for any interstate matter.
Devajyoti Barman
(Expert) 17 November 2011
Yes In WB the stam duty for gift deed is very negligible i.e.0.5%.
prabhakar singh
(Expert) 17 November 2011
THOSE WHO KNOW UPLOADING SHOULD UPLOAD THEIR STATE LAWS BE IT RENT CONTROL OR STAMP OR COURT FEES.
ME EXCEPTED NOT VERY KNOWN WITH HOW TO?
prabhakar singh
(Expert) 18 November 2011
Despite all speculations about stamp duty i can not prefer a gift against a sale deed in
the very peculiar facts of this case.
Raj Kumar Makkad
(Expert) 18 November 2011
Prabhakar singh ji! In almost all States, stamp duty on gift is negligible compared to sale-deed. In Haryana also, it is only 3% compared to sale deed having burden of 8% stamp duty.
So far comparison in the given facts is concerned, I shall prefer conditional gift-deed which can be got rescinded by donee on violation of term of gift especially if payment is stopped but this option is no available in case of sale-deed so gift deed is the only option.
prabhakar singh
(Expert) 18 November 2011
Mr. Makkad!
What every body is overlooking that according to query the arrangement between two brothers is so that the younger brother who shall get the house alone would under terms paying 13000/= per month continuously for a period of 07 years to his elder brother.
Then the question is can this transaction be called gratuitous to advise a gift?????????
prabhakar singh
(Expert) 18 November 2011
@ MR. MAKKAD!
Gift to be drafted in this case would not be so simple that any dispute could be avoided.
REVOCATION CLAUSE OF THIS KIND OF A CONDITIONAL GIFT WILL BE A PRACTICAL FRUSTRATION.
PLEASE DRAFT A GIFT AND PUT HERE FOR CONSIDERATION FOR MY LEARNING OR FOR YOUR SCRUTINY TO LOOK INTO THE FEASIBILITY SUGGESTED.
prabhakar singh
(Expert) 18 November 2011
AND MR. MAKKAD!
BEFORE YOU DRAFT YOU READ 126 TPA VERY CAREFULLY.
MORE PARTICULARLY THE FOLLOWING PORTION:
"A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded."
HAD IT BEEN TO READ AS "A gift may also be revoked in any of the cases in which, if it were a contract, it might be rescinded"
I COULD HAVE BEEN LESS WORRIED.
BUT THERE ARE FOLLOWING IN BRACKETS BEING OVERLOOKED BY EVERY ONE INSISTING ON GIFT
" (save want or failure of consideration)"
prabhakar singh
(Expert) 18 November 2011
AND YOU SEE MR. MAKKAD
THAT
IN THIS CASE CONSIDERATION WOULD BE THE CONDITION??????????????
THAT IS THE ANXIETY OF MINE " (save want or failure of consideration)"LYING IN 126 WHICH EVERY BODY IS IGNORING FOR STAMP DUTY.
WHAT WOULD BE IF AFTER 01 YEAR PAYMENT IS STOPPED.?????
prabhakar singh
(Expert) 18 November 2011
Such a gift in my opinion can be drafted only when DONOR is a senior citizen and DONEE is under liability to maintain him that too not because of TPA 126 BUT because of section 23
of THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007
23. Transfer of property to be void in certain circumstances : (1) Where any senior
citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his
property, subject to the condition that the transferee shall provide the basic amenities and basic
physical needs to the transferor and such transferee refuses or fails to provide such amenities
and physical needs, the said transfer of property shall be deemed to have been made by fraud or
coercion or under undue influence and shall at the option of the transferor be declared void by the
Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such
estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against
the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2),
action may be taken on his behalf by any of the organisation referred to in Explanation to subsection (1) of section 5.
prabhakar singh
(Expert) 18 November 2011
Then an elder brother is neither a senior citizen nor a dependent of younger brother.
Result is that in case of default on the part of younger with regard to a condition being consideration in sum quantum of rupees nothing shall be there in hands of any lawyer to help the elder.
In my view those who here opine for a gift are swayed by cost of stamp duty only but are not interested in legally watching the interest of elder who in fact has asked this query.
prabhakar singh
(Expert) 18 November 2011
A careful reading of section 23 of THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007
shall also show that even here words used are
" the basic amenities and basic
physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs,"
AND KEEPS THE TPA'S"(save want or failure of consideration)"SAVED
Raj Kumar Makkad
(Expert) 18 November 2011
Prabhakar Singh ji! You have devoted much time and have invested your valuable energy as well as lot of posts (which may also have increased no. of your posts) in teaching me about the alleged consequences of gift. I pay a lot of thanks to you but unfortunately you have no put a single argument in favour of your suggestion of sale-deed. Suppose payment is stopped after some time then can such sale-deed rescind on the part of seller and whether drafting of such sale-deed shall be easier?
I shall not put my simple query in many many posts as generally persons here do just for increasing number of posts and for earning maximum points.
prabhakar singh
(Expert) 18 November 2011
If it is possible i am wiling to gift you all
points earned by me so far with out imposition of any condition.
prabhakar singh
(Expert) 18 November 2011
I really thought you shall address this part of problem:
PLEASE DRAFT A GIFT AND PUT HERE FOR CONSIDERATION FOR MY LEARNING OR FOR YOUR SCRUTINY TO LOOK INTO THE FEASIBILITY SUGGESTED.
prabhakar singh
(Expert) 18 November 2011
I can draft the sale deed that shall not frustrate if party under obligation breaches.
But i want to see that draft of gift that with regard to condition of consideration payment shall not frustrate and donor shall stand guarded.
you show me by your draft that you can save donor from" (save want or failure of consideration)"
