Legal value of unregistered gift deed & registered gift deed
RAMESH KISANI
(Querist) 14 April 2012
This query is : Resolved
Mr. A was the Owner of a Flat in Mumbai. Mr. A First executed a Gift Deed in favour of one of his Grand-sons Mr. B, in the year 2006. This Gift Deed was adjudicated for payment of Stamp Duty and Stamp Duty was paid by Mr. B, but thereafter, this Gift Deed was NOT REGISTERED by Mr. A and Mr. B with Registration authorities. In the year 2009 Mr. A decided not to Gift the Flat to Mr. B, so first he executed a Declaration for Cancellation of that UN-REGISTERED GIFT DEED. After cancelling the first unregistered Gift Deed, in the year 2009 Mr. A executed another Gift Deed in favour of his Son Mr. C. Mr. C. paid the requisite Stamp Duty on that Gift Deed. This second Gift Deed of 2009 has duly been REGISTERED with Registration authorities, jointly by Mr. A. as Donor and Mr. B. as Donee therein. Please inform (1) which Gift Deed has Legal sanctity in the eyes of Law, (2) Whether Mr. B. has or can he claim any right, title and interest over the Flat of Mr. A, on the basis of the Un-Registered Gift Deet, which is any way cancelled by Mr. A, and the same was not registered by Mr. A. in favour of Mr. B? Thanks in advance.
ajay sethi
(Expert) 14 April 2012
1)for a gift deed to be admissble in evidence registartion of gift deed is a must . in present case although gift was executed in 2006 but not regsitered . subseqnrly it was cencelled in 2009 .
2)cancellation of gift deed by A was not challneged by donee B . further posession has not been given by A to B
3)Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.
4)Section 123 of the Transfer of Property Act, 1882 (for short, `T.P. Act’) lays down the manner in which gift of immoveable property may be effected. It reads thus : “S.123. Transfer how effected. — For the purpose of making a gift of immoveable 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
5)in present case gift by A to B is not a valid gift
Raj Kumar Makkad
(Expert) 14 April 2012
There is no reason to have different opinion than of Sethi.
The gift deed duly executed and registered between A & C is valid and B has nothing to do with the property concerned on the basis of unregistered gift-deed which never saw the sun and no physical possession of the alleged gifted property was even done by a in favour of B.
prabhakar singh
(Expert) 15 April 2012
(1) which Gift Deed has Legal sanctity in the eyes of Law???
ANSWER: One that is duly registered between 'A' and his son 'C'
(2) Whether Mr. B. has or can he claim any right, title and interest over the Flat of Mr. A, on the basis of the Un-Registered Gift Deet, which is any way cancelled by Mr. A, and the same was not registered by Mr. A. in favour of Mr. B?
ANSWER:
No,not at all.
prabhakar singh
(Expert) 15 April 2012
The answer is subject to a condition that parties are not Muslims.
Raj Kumar Makkad
(Expert) 15 April 2012
The law of Gift in case of Muslims is entirely different so the entire discussion is revolving round the fact that parties to the gift are Hindus.
Raj Kumar Makkad
(Expert) 15 April 2012
Prabhakar singh ka puneh dhanyewad ki unhone meri advice ka samarthan kiya hai.
