1) other legal heirs can execute gift deed or relinquishment deed in your favour
2) they can relinquish their share in property and execute relinquishment deed in your favour
Inheritance of agricultural land
My Father died intestate and left behind a son (me), a daughter, a wife and his father as the legal heirs to his property according to Muslim law. He had a RURAL agricultural land to his name which I seek to inherit. The other legal heirs have no objection to this. I understand that the stamp duty for transfer of title ownership for immovable property as way of gift is 5% for non-family members and 0.5% for family members on the market value. So in my case the stamp duty is 0.5% for transfer by way of gift from the other legal heirs and 1.1% as registration fee. Thus 0.5+1.1 = 1.6% excluding lawyer fee etc. But my question is, Will my case be considered as:- a. Pay Gov. 0.5%+1.1% as Transfer by way of gift among the legal heirs who are family members, or b. That the other 3 legal heirs will relinquish their right to the property and I would have to pay NO stamp duty, just a deed on say Rs 500/- stamp paper.
Asked 8 years ago in Property Law
Religion: Muslim
16 Answers
1. In West Bengal As well as in other states all transfer of immovable proeprty attracts stamp duty with varying rates.
2. So here also the deed of gift or deed of release both have equal rate of stamp duty.
3. Hence whether you go for gift deed or deed of release you can not avoid stamp duty calculated on the value of the property
4. I would recommend you to go for gift deed only since all of you are your family members.
1. The other legal heirs are at liberty to execute a gift deed or relinquishment deed in your favour, both of which will attract stamp duty in accordance with the stamp duty act prevailing in the state.
2. Irrespective of whether you go for a gift deed or relinquishment deed the stamp duty and registration charges cannot be avoided.
1. So even relinquish deed would have to be registered with stamp duty of 0.5% +1.1% (reg. Fees)? 2. Which one is better to do in this case: Deed of Gift or a Relinquish Deed? 3. After registration, what is the process & charges in mutation of the said property? 4. Do I need an encumbrance certificate as well?
Asked 8 years ago
1. A relinquishment deed requires a compulsory registration, failing which it is inadmissible in evidence.
2. Better go for a gift deed.
3. Mutation charges are nominal, which only a local lawyer can tell.
4. Encumbrance certificate is not required.
Stamp duty is state subject and varies from state to state
2) relinquishment deed can be executed to relinquish share in property
3) for mutation you have to enclose death certificate of deceased father
4) receipt of payment of latest property taxes , relinquishment or gift deed executed by other heirs
5) if there is no objections property would be mutated in your name
Brother Shia Muslims can gift or will his property to 30% it would not be valid gift
1. Yes
2.I would prefer gift deed only.
3. It depends on local Municipality.
4. In WB issuance of such certificate is not vogue.
Expanding on Mr. Subhendu Ghosh's statement. I know Muslims can gift ONLY UPTO 30% of their estate to anyone except the legal heirs, and the remaining 70% would have to go the person's legal heirs in proportions according to Sharia Law. In my case, each legal heir (my mother, sister, & grandfather & me) is entitled to the estate in different proportions acc. to sharia law (i.e. grandfather - 1/6, mother - 1/8, and remaining estate in proportion of 2:1 for son:daughter). 1. Is the above stated ruling valid under the Muslim Personal Law as well? 2. My grandfather can gift me because - a) it fulfills gifting under 30% condition, as well as, b) gifting to person who is not his legal heir i.e. Me - since my father has died (this is acc to Sharia Law). BUT, Deed of Gift (this land) received from my Mother & Sister even if it fulfills gifting under 30% condition, would still violate the ruling that a Muslim can't gift to his/her legal heir. Is there a violation then if they gift their portion to me under mutual understanding? 3. What happens if a Muslim gifts someone much more than 30%. Does the Registered Deed of Gift become invalid? Do we need N.O.C from his legal heirs in that case before registration?
Asked 8 years ago
Muslims can only bequeath by will one third of their property
2) however there is no such restriction for executing gift deed
3)Essentials of a valid gift
Here the essentials of a valid gift are the following
1. A declaration of gift by the donor,
2. An acceptance of the gift express or implied by or on behalf of the donee, and
3. Delivery of possession of subject matter of the gift by the donor to the donee.
When these conditions are complied with, then the gift is complete.
1. Muslim law is uncodified law and it is bounding over all Muslims in India.
2. Ur Grandfather is no legal heir of ur father's estate. So he will not get any share.
3. It is void abinito means void at the option of the party.
But my question is, Will my case be considered as:-
a. Pay Gov. 0.5%+1.1% as Transfer by way of gift among the legal heirs who are family members, or
b. That the other 3 legal heirs will relinquish their right to the property and I would have to pay NO stamp duty, just a deed on say Rs 500/- stamp paper.
Stamp duty on gift duty and settlement duty are to be paid as applicable.
If you go for the second option that is relinquishment deed, then also the stamp duty is required to be paid because unregistered relinquishment deed is not valid in law.
As per Muslim law, a gift can be made orally or in writing, both are valid and there is no necessity for paying stamp duty for the gift deed made in writing since it is not mandatory to register the gift deed.
1. So even relinquish deed would have to be registered with stamp duty of 0.5% +1.1% (reg. Fees)?
If you obtain relinquishment deed then it is to be registered, this is a mandatory requirement.
You may have to pay the stamp duty as applicable.
2. Which one is better to do in this case: Deed of Gift or a Relinquish Deed?
Relinquishment deed wold be better option.
3. After registration, what is the process & charges in mutation of the said property?
After registration you have to apply for transfer of revenue records and mutation of properties before the revenue department in writing and comply with the further necessary formalities in this regard.
4. Do I need an encumbrance certificate as well?
You can get an encumbrance certificate to your property details after getting the deed registered on your name
If the legal heirs consent then more than 1/3rd sahre can be transferred. In your case it is only happening.
The gift more than mandatory 1/3rd share without consent of other legal heirs is not valid to the limit which is transferred in excess of 30%. SO the whole deed does not become non est under the eye of law.
1. The share as mentioned by you is valid only for partition of property.
As per Muslim personal law or Shariah law, the gift deed can be for the whole property but a will can be only for one third of the property and not entire property.
2. You are under misconception that the gift can be done only for 30% of the property or share of property.
This rule is applicable only for theWill or Wasiyatnama and not for Gift or Hiba.
You have been wrongly guided in this aspect about the provisions of Sharia law or Muslim personal law.
The people desirous of executing a gift deed in your favor can very well do it for their entire share in the property.
3. Answer to this question is given above in answer 2.
You need to pay stamp duty on relinquishment deed also. Both ways can be done gift deed or relinquishment deed it's your perogative. Only the transfer of title in your name is essential.
So the land is being registered on my name (I'm one of the legal heirs out of the 4) by gift of deed from the other 3 legal heirs (who are family members).. thus stamp duty is 0.5% and registration fees is 1.1%.. My question is: 1. Whether this gift of deed will mention the portion of land being gifted to me by each legal heir according to the portion they are entitled to receive from succession based on Muslim Sharia Law. For ex: If my mother is entitled to receive say 1/8th of the land, does the gift of deed need to specify the portion of land, say X sq.ft, my mother is gifting me (i.e. X sq.ft = 1/8th of total) ? 2. Since I'm one of the legal heirs, will the gift of deed to me be only of the combined portion that the other 3 legal heirs were entitled to or of the total land? For ex: If land is 100 sq.ft, and acc. to Muslim succession my share is 47 sq.ft, thus will gift of deed (by other 3 legal heirs) to me be only for remaining 53 sq.ft? or for the total 100 sq.ft? I was informed that gift of deed to me will be for combined portion of other 3 legal heirs and that during mutation the entire land will be recorded under my name.
Asked 8 years ago
1) it is advisable to specify share of land gifted to you
2) once the the gift deed is executed for combined portion of other 3 legal heirs share mutation of entire land would be recorded in your name
1. The donor can execute a registered gift deed in your favor to the share of property they are entitled to as per Sharia law and not beyond that.
2. Since you are one of the legal heirs, there is no necessity for anyone to gift your share in the property, the other legal heirs can transfer their share of properties by executing a rgistered gift deed in your favor in respect of their respective legitimate shares in the property, which will make you the absolute owner of the entire property.