February 20, 2019

All About Gift Deed

AUTHORED BY: SIDHANT MALHOTRA

AMITY LAW SCHOOL, NOIDA

Various Uses of Gift Deed

There numerous ways by which the property can be moved from the owner of that property to the donee. It can be done by sale, will or gift but the method commonly used to transfer the property to the family members is by making a gift deed in favour of that person.

Although no pecuniary transaction is involved in the gift deed then also it is mandatory to get the gift deed registered.

Section 122 of the Transfer of Property Act, 1882 defines gift.

What All Can be gifted?

Things which can be gifted should have such properties to be called as a gift –

It should be movable or immovable property.
It should be tangible property.
It must be transferable.
It should be in present time and not to be a future property.

Gifting Process

DRAFTING DEED

Taking help from a lawyer, gift deed is drafted which elucidates what is transferred and to whom it is being transferred. It is mainly a contract between the donor and the donee which defines the simultaneous act of giving and taking. To make a gift valid, it must be made by the person voluntarily and not by force or coercion.

ACCEPTING GIFT

After the legal work is over it is necessary by the donee to accept the gift from the donor in order to make the gift deed valid. Acceptance of the gift must take place during the lifetime of the donor. In case donee fails to accept the gift, whatever may be the reasons, it is marked invalid.

REGISTRATION

A gift of immovable property cannot pass any title or ownership unless it is registered under Section 123 of the transfer of property act, 1882. Attestation by two witnesses is mandatory during registration as well as post registration then only ownership is transferable.

How to Get Gift Deed Registered?

Gift deed gets registered as per the provision of the Registration Act, 1908 –

Valuation of the property to be gifted by the valuation expert.
Payment of stamp duty and transfer duties vary a bit for men and women (slightly lower for women). Stamp duty also differs from state to state.

Gift Deed in Case of Minor

Any person who owns the property can make the gift deed in favor of anyone but there is an exception to this rule.

In the cases in which either a donee or donor is a minor, minors are not capable to contract thus, they cannot transfer property as a gift.

In the event of the donor being minor, the gift deed becomes invalid.
In case, if the donee is a minor a guardian can accept the gift on behalf of the minor.

Guardian is a manager of the property gifted to the minor. Once the donee turns major he may either accept the gift or return the gift back to the donor.

Essentials of Valid Gift

DECLARATION

There must be an elucidated intention of the donor to make the gift in favor of another person. Declaration by the donor is the statement which clearly signifies that the donor is ready and willing to making a gift in favor of another person. A declaration can be in written form or can be oral depending upon the situation. The donor can declare to gift property of any kind either orally or by written means. Under Muslim law, it is not mandatory to give in writing to transfer a gift.

ACCEPTANCE

There must be proper acceptance by the donee. If donee does not accept the gift then, it will become invalid.
A child who is in the mother’s womb is also a valid donee if he/she born within six months after declaring gift in his/her favor.
The gift can also be made in favor of the company, a close corporation, a body corporate or a trust.
Any guardian on behalf of the minor or insane person can receive the gift.

POSSESSION DELIVERY AND ACCEPTANCE OF GIFT

The term possession in Muslim means only such as the nature of the subject is capable of. Therefore, the real test of delivery of possession takes place to see who takes advantage of the gift, whether it is donee or donor. If the advantage of the gift is been taken by the donor then the gift will become invalid.

Things which should be kept in mind while Making Gift Deed

While executing the gift deed one thing should remember that, after executing the gift deed in favor of the donee, the donor does not have the right to revoke or repudiate the gift deed until there is a special clause mentioning to revoke the gift, which has been made in the favor of donee.