• Gift deed

My Father along with his 3 other brothers have bought 400 cents of land. 7 years back, after my father expired, we all divided that land and executed a deed of "PARTITION AMONG FAMILY MEMBERS". My family of 3(myself, my brother and mother) got 100 cents as our share. 

Now My brother want to sell some part of it as he needs money urgently,so we 3 agreed as below: My brother 45 cents, for me 40 cents, my mother 15 cents.

He already sold his 45 cents and ready to execute sale-deed of 45 cents to the buyer. Now the question comes to my share : 

1) Can we do my share(40 cents) gift deed to my wife? the registration officer is suggesting to goto sale deed, any issues with gift deed? 

2) Also during deed of "PARTITION AMONG FAMILY MEMBERS", we didn't include my sister as she is out of station that time, and now we are not giving anything to her. Tomorrow she may goto court, then if I execute sale-deed of my share 40 cents now is it safe ? Or no difference between sale-deed or gift deed to my wife of my share 40 cents

Currently i am in America and i am sending power of attorney to my father-in-law.
Asked 1 year ago in Property Law from United States
Religion: Muslim

you can execute gift deed for your 40 cents share in land

2) your sister can file suit to set aside partition deed and sale deed / gift deed executed by you

3)you can execute sale deed but for that consideration has to change hands . your wife has to pay you sale consideration for purchase of 40 cents of land

Ajay Sethi
Advocate, Mumbai
66920 Answers
4041 Consultations

5.0 on 5.0

After the partition you became the owner of the property therefore you have accrued the right to transfer this property by any of the way permissible in the law. Therefore you can make a gift deed and transfer this property to your wife. Generally the gift deed is preferred where the transfer is being done between the relatives.Therefore you should go with the gift deed instead of sale deed. If your sister did not raise objection at the time of partition therefore at the later stage she cannot claim any share in the property because she is prevented to do so by the rule of estoppel under section 115 of the Indian Evidence Act.

Shivendra Pratap Singh
Advocate, Lucknow
5105 Answers
78 Consultations

4.9 on 5.0

 you can execute power of attorney and empower your father to perform some work on your behalf.

Shivendra Pratap Singh
Advocate, Lucknow
5105 Answers
78 Consultations

4.9 on 5.0

Dear Client,

Where property situated.

Sub registrar is fooling u, as sale deed will cost stamp duty upto 5 % of sale consideration.

Stamp duty on GIFT DEED is 3 % and in some states, its just nominal if Gift effected in close relatives.

GIFT DEED advisable.

1) Can we do my share(40 cents) gift deed to my wife? the registration officer is suggesting to goto sale deed, any issues with gift deed? -- Sale deed not advisable. also, no actual purchase effecting, so SD not maintainable for want of consideration. + GST and property rate calculated above 50 laces than 1% TDS.

2) Also during deed of "PARTITION AMONG FAMILY MEMBERS", we didn't include my sister as she is out of station that time, and now we are not giving anything to her. Tomorrow she may goto court, then if I execute sale-deed of my share 40 cents now is it safe ? Or no difference between sale-deed or gift deed to my wife of my share 40 cents --- In actual the partition effected between u members is improper. Property will part in 1/4 each, and unless sister do not release her share, she is right full holder in father`s property of 1/4th.

Gift deed through POA is valid, but get in registered in India within 4 months otherwise, invalid.

Yogendra Singh Rajawat
Advocate, Jaipur
13207 Answers
17 Consultations

4.6 on 5.0

1. You are correct. You should not have excluded your sister. She being legal heir of your father, she is entitled to her share in the property as per Sharia law. Daughters get half of what the sons get. So she does have a right in the property regardless of the family partition.

2. You can transfer your undivided share of 45 cents by way of gift to your wife. Sale deed is not required. That suggestion is totally absurd. It is upto the owner whether he wants to sell or gift his property. The registrar has no business to suggest as to what should be the mode of transfer.

3. Regardless of all the transfers i.e. by your brother of his share and by you to your wife, your sister's right will remain and she may dispute the transfers in future. So its better you settle her either by giving her share or by paying some monetary consideration and take her no objection on record or rather have a release deed signed by her whereby she will relinquish her share in the property. She may also execute a gift deed in respect of her undivided share in either your favour or your other family members with consent of all.

Yusuf Rampurawala
Advocate, Mumbai
4457 Answers
25 Consultations

5.0 on 5.0

1. You can make a gift deed as no consideration is involved there is no issue in giving gift to your wife.

2.The sale deed of your brother and gift deed along with family settlement can be challanged by your sister as she also have the rightful claim over the land. See even you do a sale deed or gift deed your sister can ask share and the subsequent deeds can be be cancelled even in name of third party or wife.

So it's better to settle your sister and ask her to do a relinquish deed of her share subsequently make a gift deed.

Shubham Jhajharia
Advocate, Ahmedabad
19310 Answers
75 Consultations

5.0 on 5.0

1. If there is a deed of partition then your share of land is treated as your exclusive share and hence you can sell this to anyone you choose including your wife.

2. Since you deprived the share of your sister then she can alter claim her share and file a suit for partition for which all of will be equally responsible to compensate for her share.

3. Yes, your father in law on the basis of POA can represent you in your absence in court or in public office.

Devajyoti Barman
Advocate, Kolkata
17808 Answers
252 Consultations

5.0 on 5.0

1. Have you all got your said share of 100 cents partitioned through a partition deed or settlement deed by seperating the shares by metes and bounds?

2. If not then from side of the property he is going to sell as his own share of the property?

3. First demarcate the shares of all three of you then you can individually deal with your shares in any way you feel like.

4. There is no ground based on which you have been advised by the registration office to register a sale deed in favour of your wife in place of gift deed. This will create trouble for you and yoiu shall have to pay high amount of stamp duty if you sale the property.

5. If you or any of you sale your so called share of the property which you yourselves have decided without the consent of your sister who has equal claim on the said property, then all your such sale/gift/settlement deed will be illegal and invalid in the eyes of law.

Krishna Kishore Ganguly
Advocate, Kolkata
22518 Answers
594 Consultations

5.0 on 5.0

Firstly you three enter into either a family arrangement for dividing the properties among you three and get it registered or drawn amicable partition with proper demarcation.

Once the registered partition or family arrangement deed is in your possession, you can execute a registered gift in favor of your wife, ther is no legal impediment in it.

Since this property belonged to your deceased father, upon his intestate death, the property shall devolve equally on all his legal heirs/successors in interest.

Therefore your sister is entitled to a rightful share in it equally by dividing it into four equal parts and she can take possession of her legitimate share of 25 cents in it.

Your sister can claim partition and separate possession of her share anytime during her lifetime, nobody can deny her rightful share in the property.

So it is better that you obtain a registered release deed from her now itself, relinquishing her rights in the property to avoid future litigation in this regard.

T Kalaiselvan
Advocate, Vellore
56685 Answers
701 Consultations

5.0 on 5.0

Firstly, if the portion is on paper with respect to your each shares then you can gift it, there is no harm in it.

Yes, she might come and ask for the same but as per me she hits the burden of limitation period to impugned it.

Sanjay Baniwal
Advocate, South Delhi
4894 Answers
11 Consultations

5.0 on 5.0

Sir

Since your father had share in the said property, after his demise, all his legal heirs, including your sister would equally inherit your father's share in the property. So the 100 cents, under the law would be divided in to 4 parts equally i.e. your sister, your mother, and you two brother. (Unless there is mutual partition deed, or WILL of your later father).

If your sister goes to the court, then she can ask for revocation of sale already made by your brother of his 45 cent, and if you do gift deed or sale (makes no difference) she can also seek revocation of the same. The court, in a given facts of the case, may or may not revoke such deed is different thing, but legally that remedy exist to her.

Additionally, whether you do gift deed or sale deed, it make no difference, because first of all you have to pay equal stamp duty on the document, and second it has to be compulsory registered, and gift is as good as conveyance, except that in conveyance consideration passes, and in gift no consideration passes. So either make no difference, as in civil law suit both are vulnerable against other vested rights.

So answer to your question is

1) It make no difference if you do gift or sale deed.

2) Since sister is not included, she can at any time file law suit and seek her share in the property for the entire 100 cent, whether sold, gifted or otherwise held.

I am practice in Gujarat High Court. Should you have any query then feel free to ask.

Regards

Vivek N Mapara

Vivek Mapara
Advocate, Ahmedabad
28 Answers
3 Consultations

5.0 on 5.0

If your brother is selling 45 cents and you are purchasing 40 cents from brother sale deed should be executed

2) on mother demise her 15 cents will devolve on you and your siblings equally

3) your mother can execute will bequeathing property to whom so ever she pleases

Ajay Sethi
Advocate, Mumbai
66920 Answers
4041 Consultations

5.0 on 5.0

1) your brother for sale has to make a sale deed.

For you transferred to your wife can make gift or family settlement deed on gift stamp duty in andhra is 5% and on family settlement it is 3%.

Please refer the link for schedule of stamp duty in andhra pradesh.

https://www.google.co.in/url?sa=t&source=web&rct=j&url=http://www.maaproperties.com/Documents/apstampduty.pdf&ved=2ahUKEwi6-MefprbaAhUZSY8KHaAWAm0QFjABegQIBxAB&usg=AOvVaw0GZMm8ydfeor3qXfz_L-jn

She can either gift or through family settlement can decide her property now or she can make a registered will in favour anyone she wants for her share.

Also again to remind you you will pay these lot of stamp duty without giving your sister right she can challange it and your all deed can be set aside to better get a relinquish deed from her than make following deeds.

Shubham Jhajharia
Advocate, Ahmedabad
19310 Answers
75 Consultations

5.0 on 5.0

After her death, her share will devolve in both brother`s by equal share or she can execute the WILL, to whomever she wants to give her share.

On the basis of partition deed, get it mutated in u.

Yogendra Singh Rajawat
Advocate, Jaipur
13207 Answers
17 Consultations

4.6 on 5.0

1. First of all why do you want to convey the title of the property in favour of your wife? Please note that even after gifting or selling your or your brother's share of your father's property, your sister can claim her share and in that case the said sale/gift deed can be challenged before the Court to get cancelled. However, if you show sale to your wife, you shall have to show payment of the sale proceeds to her and absence of any evidence in support of the said money transaction, the authenticity of the said sale deed might be challenged later on. So, it will be prudent on your part to register a gift deed in favour of your wife.

2. If your mother dies intestate, her share of the property will be equally inherited by all her legal heirs including her daughter.She can gift or will her said share in favour of anyone during her life time.

Krishna Kishore Ganguly
Advocate, Kolkata
22518 Answers
594 Consultations

5.0 on 5.0

Registered partition or family settlement deed in respect of respective shares of all the shareholders in a singled registered document may work out for a cost effective stamp duty, you may compare the stamp duty of various transfers namely, family arrangement, family partition or gift deed.

The share of property that belongs to your mother shall devolve on her legal heirs after her lifetime if she has not made any arrangement for disposal of the same by executing a registered will or settlement in favor of any one in particular during her lifetime.

T Kalaiselvan
Advocate, Vellore
56685 Answers
701 Consultations

5.0 on 5.0

1. cheapest way is a Will. but the Will has to be proved in court of law after demise of the owner of the property.

2. that will entail you costs. but that will come that time and not now.

3.also there will always be the fear that the Will may be challenged by any legal heir in which event the property will be unnecessarily locked in litigation

4. the 15 cents of your mom will go to her legal heirs after her demise. the distribution of the same will be as per sharia law. that is, the sons get double of what the daughter gets.

Yusuf Rampurawala
Advocate, Mumbai
4457 Answers
25 Consultations

5.0 on 5.0

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