How to Make Gift Deed in Gujarat?

How to Make Gift Deed in Gujarat Front

An owner of the property can transfer the same in many ways like Will, Gift or Sale.

Among family and friends, the property is usually transferred by way of executing a Gift Deed. 

The process of Gift deed creation is generally the same in all the States of India. There are certain requirements which are specific to each state, e.g. the criteria for imposing Stamp duty varies from State to State. The difference is there in stamp duty, and registration charges as States can charge Stamp duty and registration fees as per their revenue requirement.

For Gift deed in favour of blood relations, most of the States charge nominal Stamp duty and registration fees. In some states, there is a complete waiver also.

The process of gift deed creation requires:

  • Drafting of gift deed on stamp paper- In the drafting of Gift deed, the value of stamp paper depends upon the value of the property to be gifted. The gift deed must mention that gift is being made voluntarily and without any consideration. The donor must be solvent.
  • Signature of donor and donee on the deed – signature of the donee on the deed signifies the acceptance of the gift by the done which is necessary to make the gift valid. Acceptance of gift must be made during the lifetime of the donor otherwise the gift is rendered invalid.
  • Attestation by witnesses
  • Payment of stamp duty and registration charges

Under section 17 of the Registration Act 1908, registration of a Gift Deed is compulsory.  The stamp duty and the registration charges payable in each State are different and therefore, it is better to consult a local lawyer for making a gift deed.

Read: How Does Religious Conversion Affect Property Rights?

Moveable property can be gifted without any deed. Delivery and acceptance of the moveable property complete the gift transaction.

In the State of Gujarat:

  • Stamp duty payable is governed by the Bombay Stamp Act, 1958 as applicable to the State of Gujarat.
  • Stamp duty payable is 3.5 % of the market value of the property being gifted.
  • Surcharge @ 1% is also applicable over the stamp duty basic rate
  • Registration charges are paid in addition to the stamp duty.

Stamp duty payable depends upon the value of the property to be gifted. Valuation of property should be carried out by experts in the field to calculate the correct stamp duty.

In the state of Gujarat:

  • Draft models of gift deed are present on the official website, in English as well as the Gujarati language.
  • Property can be registered online also.
  • There is a provision for e-payment of Stamp duty and registration charges.

Since the registration of the deed of immovable property is mandatory, unregistered deed is not recognised in law. Therefore, it is advisable to register it as per the prevalent State Laws. In case, the gift deed of immovable property is not registered, the title does not pass to the donee. For Registration, the Gift deed is presented to the office of the local Sub -Registrar within whose territorial jurisdiction, the property or a portion of the property to be gifted lies.

Important points: In the State of Gujarat –

  • There is a penalty of 200% of the value of the gift deed executed, for evading stamp duty.
  • After GST, there is no impact on stamp duty and registration fees.

Do grandchildren have a right to their grandfather’s property?

Do grandchildren have a right to their grandfather’s property

Property rights are determined as per personal and statutory laws.

Hindu Law:

Under Hindu law, before deciding the question of the right of grandchildren in the property of grandfather, it is important to know the nature of the property in the hands of the grandfather – whether ancestral or self-acquired.

Ancestral Property:

It is the property which is inherited by a person from his father, grandfather and great grandfather. The property must have passed undivided up to four generations.  Property is divided as per stripes and not as per capita, i.e. share of each generation is determined first then the successive generations divide among themselves the share of their  predecessor generation. 

Hindu law recognises the concept of coparceners. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations. After the amendment of 2005 in the Hindu Succession Act, 1956, daughters are also coparceners along with sons.

Grandchildren – birthright in ancestral property

In the ancestral property (coparcenary property), the coparcener has a birthright. If the grandchildren are coparceners, they have a birthright in the ancestral property of the grandfather. They have a right along with all other coparceners, and therefore, they are entitled to get their share only. They can demand partition and file a suit for declaration and partition.

After the amendment of 2005, when a Hindu having an interest in the ancestral property dies intestate, his interest will devolve as per succession rule provided in Section 8 of the 1956 Act.

Self-acquired property: It is the property which a person:

  • Purchases from his own income/resources
  • A share of property acquired as a result of partition in ancestral property
  • Receives as a gift
  • Acquires as a legal heir through a testamentary document, e.g. Will

A person has absolute right over his self-acquired property and can dispose of it off as he pleases.

Grandchildren have no birthright in the self-acquired property of the grandfather. As per Hindu Succession Act, 1956, the self-acquired property of a Hindu male dying intestate devolves by succession, among the legal heirs as follows:

  • Class I heirs
  • Class II heirs (if no one in class I)
  • Agnates (if no one in class II)
  • Cognates (if no one in agnates)

( List of all the heirs is provided in the schedule of the Act )

Read: Property rights of daughters Under Hindu Law in India

The grandfather has absolute right to deal with the self-acquired property as he desires. If the Grandfather has made a will, the property bequeathes to the person named in the will.

If the grandfather dies intestate, the property devolves as per rule of succession provide in Section 8 of 1956, Act. Grandchildren will not get any share in the self-acquired property of the grandfather as grandchildren are not in Class I heirs. The father, i.e. son of the grandfather who is Class I heir gets the share.

However, if the father had already died before the death of the grandfather, then the grandchildren become entitled to the share in the self-acquired property as children of the predeceased son as they are now included in class I heirs as children of predeceased son/daughter and they inherit equally as other class I heirs.

Muslim Law:

There is no concept of joint family property in Muslim Law. The right of inheritance opens on the death of the person, and the nearer relatives are preferred over, the remoter. If the father is alive at the time of the death of the grandfather, he will get the property and not the grandchildren.

Effects of Family Disputes on the Partition of Property in India

Effects of Family Disputes on the Partition of Property in India

Family disputes can lead to a forced partition. Partition of property takes place when there is joint ownership of two or more persons in property, and each of them wants to have a separate share. Partition of property comes with financial and legal implications.

The partition of property in India is governed by Partition Act and Personal laws of inheritance.

Effects of Partition:

  • Once the partition is effected, joint ownership is terminated, and each co-owner becomes the absolute owner of his share and is free to deal with it.
  • When shares of all co-owners are severed, it is partition. When one co-owner is separated, and others continue as joint, it is separation of shares.
  • It involves the transfer and surrender of rights in the property.
  • The property gets divided or is sold, and the proceeds are distributed.

Ancestral or Self Acquired Property:

The property can be ancestral property or self-acquired. Self-acquired property cannot be partitioned during the lifetime of the person who acquired it.

A partition can be effected at the instance of any one of the co-owner and consent of all is not required.

Share of each co-owner:

Share of the co-owners if not defined, needs to be ascertained during partition so that each gets the appropriate share. It is always better to take expert legal assistance to avoid unnecessary disputes.

Family Disputes and Partition:

Family disputes arise more often in case of joint family property. Partition of joint family property can be effected by:

  • Amicable Settlement
  • Forced Settlement – By Arbitration /by court

Amicable Settlement:

Family arrangement – The family arrangement can be done amicably. The members negotiate and settle for their share as per mutually agreed terms and conditions. The family arrangement can be oral or written.

If the family arrangement is only a record of what has been settled, it may be reduced in writing and need not be registered. However, if the document is to be used as an evidence of settlement, then the document is registered.  A partition deed can be executed when the partition takes place with mutual consent.  The partition deed clearly defines the share of each co-owner. The deed is registered, and stamp duty is paid.

Forced Settlement:

Filing a partition suit –If there is a dispute and no amicable solution is there, partition suit is filed, and settlement is arrived at through intervention of the court. The court may physically divide the property, or distribute the sale proceeds of the property.

Court proceedings are time-consuming and at times, a drain on resources. It is better to settle the disputes amicably out of court.

Share of each co-owner is assessed, either with mutual consent or the court appoints a local commissioner for ascertaining the respective shares.

Partition by Arbitration:

An arbitrator is appointed by all the members of the joint family to decide their share and divide the property accordingly.

Partition in case of HUF

Hindu Undivided Family is a concept where all the members are a lineal descendant of a common ancestor. All have equal right in the property. People go for HUF status to avail tax benefits. There is a presumption in case of HUF that assets of HUF are joint property unless the contrary is proved. Only coparceners, i.e. members limited to four generations can seek partition. Daughters married or unmarried can also be coparceners. When partition takes place, all assets are equally divided among all the members.   

Who Has the Right Over A Woman’s Property?

Who Has the Right Over Woman's Property

Rights of a woman to a property as well as rights of others in her property vary a lot and are influenced by various factors like culture, religion, the social status of the woman and the development level of the society to which she belongs.

A woman may acquire property as:

  • Ancestral property
  • Self-acquired
  • Inherited
  • Received as gift/will

In India, the property rights of women are governed by law enacted by the legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)

The property of a woman devolves as per the Hindu Succession Act, 1956. The Act deals with intestate succession and not wills.

Hindu woman is an absolute owner of the property acquired by her through inheritance, partition, gift, will, in lieu of maintenance or purchased by her. The ownership gets limited in case the property transfer is subject to some restriction.

Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she dies intestate and section 16 prescribes the order of preference:

  • Own children, children of predeceased children, husband – all share equally
  • Heirs of the husband (only when heirs in point 1 are absent)
  • Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

  • If property by a Hindu woman is inherited from her father – in the absence of her children or predeceased children’s children, it goes to the heir of her father and not to the husband.
  • If the property is inherited from her husband or father in law – in the absence of her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so that the property is bequeathed to beneficiaries one desires. As per the scheme of the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and they inherit the share in the ancestral property equally as a son and subject to same rights and liabilities as a coparcener. If she dies intestate, her interest devolves as per 1956 Act. She also has a right to make a will of her share.

Read More: Property rights of daughters Under Hindu Law in India

B.    Muslim woman

Under Muslim Law, there is no distinction between self-acquired or ancestral property for inheritance purposes. Inheritance opens only on the death of a person. Before a person dies, no legal heir has any right in the property. Legal heirs in Muslim law are divided into two categories

  • Sharers
  • Residuary

Sharers get their share first and residuary get what is left.

If A Muslim woman inherited property from any relation i.e. husband, son, father, mother, she becomes the absolute owner of her share and can dispose it. A Muslim woman in inheritance gets half the share of what male heir gets.

If a Muslim woman wants to make a will of her property, she cannot give away more than one-third share of her property, and if her husband is the only heir to her property, she can give two-third of property by will.

A child in the womb of his mother is entitled to inherit if born alive.

C.    For others (Christian, Parsi and Jews)

For women of faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, succession whether Testamentary or non-testamentary, is governed by India Succession Act, 1925. Blood relatives of woman inherit even in the presence of husband and husband’s relatives. Inheritance laws under this Act are generally gender just.

Parents Can Evict Abusive Children from Home: Delhi High Court (Judgement)

Parents Can Evict Abusive Children from Home Delhi High Court Judgement

We have had a rich culture in India since ancient times where parents are looked after by their children when they grow old. Our moral values teach us that parents need our love, care, respect and protection in their old age not only because they are our parents who looked after us in our tender age, but because they need us the most at that age.

With the growing complexities of working culture and modern social setup where joint families are giving way to nuclear families, the need was felt for State to interfere and make provisions for providing physical and financial support to the elderly by the children. Thus the Maintenance and Welfare of Parents & Senior Citizens Act, 2007 was enacted. This Act aims to provide a speedy, inexpensive and simple procedure to claim maintenance. Under the 2007 Act, it has been left to the State Governments to frame rules for the protection of senior citizens.

In the Delhi High Court Judgement in a case titled Sunny Paul vs State of NCT of Delhi, it has been made clear that under the scheme of the 2007 Act, the main objective is to provide social justice to the elderly.

A.    EVICTION CAN BE CLAIMED from abusive children

  • With or without claiming maintenance
  • From any property – ancestral, self-acquired or rented accommodation. Property can be tangible/intangible, moveable or immovable. The property includes any right or interest in the immovable property and not just ownership.
  • Even if children are not in line to inherit the property

B.    MAINTENANCE CAN BE CLAIMED

  • It is now obligatory for the children/grandchildren to provide maintenance in the form of monthly allowance to the parents if they are unable to maintain themselves out of their own earnings.

C.    OBLIGATORY TO PROVIDE BASIC AMENITIES

  • U/ s 23 of the Act, transfer of property from senior citizen will be void if the transfer was on the condition that the transferee shall maintain the transferor and provide for basic amenities and physical needs, but he fails to do so. Transfer can be actual transfer, stay or possession. The transferee can be legal heirs or children.

D.    OTHER OBSERVATIONS

  • Everyone including the senior citizens has the right to live peacefully
  • The primary objective of the Act is to protect the life and property of the Senior Citizens
  • The Court also emphasised that the Act is social legislation and needs a liberal interpretation to respond to the urgent social needs of a welfare State. The Legislation intends to provide an effective remedy to the parents to save them from being traumatised.

E.    POWER OF MAINTENANCE TRIBUNAL

  • The Court upheld the power of the Maintenance Tribunal to order the eviction of abusive children under the Act and to issue directions to give effect to the same.
  • Earlier also in another case of Rajeev Bahl, Delhi High Court has stated that even if the property is HUF and children are coparceners, they can be evicted if they are harassing/ill-treating the parents.

The children cannot continue to misbehave with elderly parents and enjoy their property also. The moral obligation to maintain the parents has now come under the purview of the State, and the same is being enforced in the true spirit and light by various Courts. If the children are not fulfilling their obligation, they can be forced to do the same, and if they are maltreating their parents, they can be evicted from the property.