• House ownership

Thank you for your advice in advance. I really appreciate it. I have a situation which I wanted your advice on. 
We are two brothers, I have completed my engineering and am earning. My brother has epilepsy and doesn't work and is dependent on me. My father has two flats in kolkata (say Flat-A and Flat-B). Flat A is in my father's name. Flat-B is jointly in my and my father's name. Flat B - though in joint name, I have paid the bank loan on it. As of 15-April-2020, i have 5 more EMIs left to complete. 
Question: How should my father and I, most cost effectively (in Kolkata/ WB) transfer both Flat A and Flat B to my brother's name? 
1. What should my father do for FLAT A to be fully on my brother's name?
2. What should my father and I jointly do to transfer Flat B fully to my brother's name?
Asked 4 years ago in Property Law
Religion: Hindu

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22 Answers

The cost effective way is only a registered will which will be effective after death of testater. Otherwise the other way is gift deed which will incur applicable stamp duty and registration charges. 

Prashant Nayak
Advocate, Mumbai
31954 Answers
179 Consultations

4.1 on 5.0

Father can execute gift deed to transfer flat A in brother name 

 

further for flat B you and father can jointly execute gift deed to transfer flat in brother name 

 

gift deed should be duly stamped and registered 

Ajay Sethi
Advocate, Mumbai
94746 Answers
7540 Consultations

5.0 on 5.0

Hi

You may consider either of the three options depending on the health condition of your brother:-

Option 1: -

You should consider transfer of property to your brother's name if and only if your brother has less than 25% physical impairment (i.e Moderate – 1-5 convulsions/month on adequate Medication) by way of executing a gift deed as follows:

1) Your father can execute a registered gift deed in favour of your brother  for Flat -A

2) Stamp duty is at 0.5% of total valuation of property and registration charges of 1.2% of total property valuation.

3) You can sign the gift deed as a witness, 

With respect to flat B, Since you and your father are joint owners, both of you need to execute a gift deed in favour of your brother and you may do after you have paid all your EMI's.

 

Option 2: -

However if your brother is having more than 6-10 convulsions/month despite medication you should consider forming a registered trust wherein you and your father will be the trustees and your brother will be beneficiary of the rentals/proceeds etc if any, given the fact that your brother might not be able to handle the affairs of the property on his own and hence a trust may be required. 

 

Option 3: -

Alternatively, you can also approach the District Collector with a prayer to appoint you as the guardian for your brother and his property rights under  section 14 of the National Trust Act,

 

Option 2 is better given the fact, it takes care of the property rights of your brother , even after the life time of the trustees.

Hope this helps.

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

1. if the FLAT A is self-earned by your father, he can transfer the same by way of a transfer deed or a gift deed in the name of your brother,

2. in the case of FLAT B, your father can transfer his share immediately by way of a transfer deed or a gift deed in the name of your brother,  but you have to wait till the EMI is over to transfer your share, however, upon completion of the EMIs you can opt for the same procedure as advised to your father i.e. Transfer/Gift

Suneel Moudgil
Advocate, Panipat
2381 Answers
6 Consultations

4.8 on 5.0

Dear Sir,

There are a few methods which you may adopt. This totally depend on your wish as to when you wish to transfer the flats on brother's name. If you wish to transfer the flats immediately on brother's name then the process of gift deed will be the best where in you will be required to pay the tax as per law. However, if you wish to transfer the said flats later on brother's name, you may take the path of will wherein the father may write the will on the name of brother so that his flat A will go to brother fully and his share in Flat B will go brother. At the time of probate of the will, you may also relinquish your share to brother and then both the flats will be on brother's name. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

1. Gift deed can be executed by you and your father for both flats in your brother's favour. It has to be compulsorily registered.

2. For flat A your father has to execute a separate gift deed, whereas for Flat B another gift deed can be jointly executed by you and your father.

 

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. By executing a registered Gift Deed by your father in favour of your brother, the Flat "A" and your brother accepting the same. By this way your brother would become Absolute Owner of Flat "A".

2.  Similarly, after completing the loan availed by you for Flat"B" jointly owned by you and your father, let your father and you jointly execute a registered Gift Deed in favour of your brother and let your brother accept the Gift. By this way you and your father can jointly transfer the property in your brother's favour to enable him to become Absolute Owner of the property.

Shashidhar S. Sastry
Advocate, Bangalore
5122 Answers
314 Consultations

5.0 on 5.0

1. The most effective transfer of an immovable property by way a registered deed of gift. 

2. The gift deed in WB entails 2.6% towards stamp duty and registration fees on total market value of the transferred property. 

3. Sk do accordingly.  Feel free to connect. 

Devajyoti Barman
Advocate, Kolkata
22830 Answers
488 Consultations

5.0 on 5.0

1. The most financially effective solution would be to execute a registered "Gift Deed", by individual persons for their respective properties in favor of the brother.

2. However, as a caution, it is advisable to rethink of such a decision (which is apprehensively based on emotional grounds) and transfer all the property in First brother (yourself) with specific clauses of "life long usage & maintenance" rights of sick brother.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows;

My below answers will be subject to local laws and local stamp duty.

  1. What should my father do for FLAT A to be fully on my brother's name?

Ans: Your father being absolute owner can transfer it by way of Gift Deed or Relinquishment, which is economical in terms of payment of  Stamp Duty. Will is not advisable.

  1. What should my father and I jointly do to transfer Flat B fully to my brother's name?

Ans: You need not do anything since you are already absolute owner of 50%  of this property. For remaining 50% (though your father is not owner) your father deemed to be owner as such your father can transfer it by way of Gift Deed or Relinquishment to the extent of his 50% share in your favor, which is economical in terms of payment of  Stamp Duty. Will is not advisable.

 

Kishan Dutt Kalaskar
Advocate, Bangalore
6136 Answers
487 Consultations

4.8 on 5.0

a transfer by registering a gift deed in the brother's name is the most feasible option

Yusuf Rampurawala
Advocate, Mumbai
7516 Answers
79 Consultations

5.0 on 5.0

Hi

Answer for both of your questions is "Gift Deed"

Thanks

 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

- Since, the Flat A is in the name of your father , then he is having his right to transfer the said flat to any one legally.

- He should execute a Gift Deed in favour of your brother for transferring the same. 

-  Further, the Flat B is in the joint name of your father & you , hence you both should also execute Gift deed in favour of your brother . 

As per Section 17 of the Registration Act, 1908,Registering a gift deed with the sub-registrar is mandatory  failing which the transfer will be invalid , and such a transfer is irrevocable.

- As per law, once the property is gifted, it belongs to the beneficiary and you cannot reverse the transfer or even ask for monetary compensation.

- Further a Gift deed must be attested by two witnesses. 

-  Further , the biggest benefit is that there is no tax implication if you are gifting property to your relatives , like your brother.

- In Kolkata , the stamp duty at 0.5% of total valuation of property and registration charges of 1.2% of total property valuation you will have to pay only. 

 

Good luck and dont forget to rating Positively. 

Mohammed Shahzad
Advocate, Delhi
13246 Answers
198 Consultations

5.0 on 5.0

You can gift the property tobhim out of natural love and affection. That would be best. A gift deed has to be drawn for that.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

1. The flat A is on your father's name, hence he is the absolute owner of the property, therefore he can directly transfer the said property to your brother by executing a registered settlement deed in his favor, which would be cost effective and proper mode of transfer to his name.

2. Similarly the property jointly owned by you and your father can either be transferred by a registered settlement or registered gift deed in favor of your brother by both you and your father jointly executing the above said registered document.

T Kalaiselvan
Advocate, Vellore
84948 Answers
2198 Consultations

5.0 on 5.0

1. A registered gift deed of same can ne made in name of your brother. Gift deed attract less stamp duty and registration cost.

2. Similarly for flat B also you can can gift your share through a registered gift deed. Registered with sub registrar office.

Further since your brother is suffering from epilepsy  you may apply before court to be appointed as his legal guardian to sign on his behalf.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Gift deed will execute. Only way out to transfer property in the name of brother in owner life time.

Gift made to a member of the family - 0.5 % -Stamp duty of the market value of the property.Registration charge 1.2% of the market value.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22643 Answers
31 Consultations

4.4 on 5.0

1. Your father should register a gift deed in favour of your brother conveying the title of Flat A in his favour.

 

2. Your father and you should jointly register a gift deed in favour of your brother, after you get the No-Due Certificate for the housing loan you have availed to buy the said flat, conveying the title of Flat B in his favour.

Krishna Kishore Ganguly
Advocate, Kolkata
27220 Answers
726 Consultations

5.0 on 5.0

Both of you can Gift the Flats-A & B to your brother in following manner:

1) You father can gift Flat A to your Brother

2) You and your Father has to Gift the Flat B to your Brother.

NOTE; Both the Gifts to be registered by paying appropriate stamp duty.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

1. You and your father should make Gift deed to transfer ownership of flats on your brothers name. 

2. He should tranfer the ownership by gift deed on name of your brother. 

3. Gift deed. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

execute gift deed in favour of your brother, it should duly stamped and registered. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

  1. As per the information mentioned in the present query, makes it clear that you and your father want to make some investment for your brother which has been suffering from a decease.
  2. I really appreciate the thinking and the decision that you have taken.
  3. I would like to apprise you that you both can execute two gift deeds or transfer deed for each flat to your brother.
  4. Father will execute the same for his flat and you along with your father for the flat which is in joint name.
  5. It won’t be costing more than few thousands, either you chose gift or transfer deed.

Sanjay Baniwal
Advocate, South Delhi
5474 Answers
13 Consultations

5.0 on 5.0

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