• Transfer of flat ownership from NRI Husband and Wife to Wife's parents

Hello. 

My husband and I live in London and own a flat in Thane, Maharashtra. This flat was registered under his name and my maiden name in 2016. We plan to get divorced next year, however, before that, my husband and I want to transfer the ownership of the flat to my parents, so they have full ownership. 

We would like to do this transfer from London itself, without visiting Mumbai with minimal costs incurred. Can we use the gift deed option to transfer the property since it is to my parents (blood relatives)?

I have a few more questions:-
1) The flat was registered in my maiden surname. Now I have changed my surname to my husband's surname. Will this cause a problem in the transfer? If this is an issue, what is the solution?
3) How long is the process of transfer and will it incur any stamp duty costs?
Asked 9 months ago in Property Law
Religion: Christian

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24 Answers

That will not be an issue. You have to state that in an affidavit that you are the same person in case the registrar office object. A gift deed has to be registered.

Stamp duty would be levied based upon the value of the property and a local lawyer may tell you the stamp duty applicable in maharashtra.

A registered gift deed can be done through a power of attorney.

Rahul Mishra
Advocate, Lucknow
11900 Answers
26 Consultations

5.0 on 5.0

1. No it won't cause any issue you may use the notification/affidavit done by you for name change while gifting the property.

2. You may send a notarized power of attorney stamped with indian consulate in favor of parents or relatives in India who can register and execute gift deed in favor of your parents. Yes stamp duty on gift deed shall be applicable.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
128 Consultations

5.0 on 5.0

To lower the cost of transfer and registration, better transfer in your name. He will execute gift deed / release deed in your favor to make you sole owner.

3% stamp duty on transfer through gift deed between close relatives/blood relatives. Gift deed can execute at Indian Consulate.

Change of surname is not an issue.

Single day process or maximum 2 3 visits. .

 

Yogendra Singh Rajawat
Advocate, Jaipur
21427 Answers
31 Consultations

4.4 on 5.0

You will have to first enter into a gift deed in favour of your parents;

2. The gift deed will have to be executed and registered in Mumbai. The stamp duty will be at 3% of market value or as per the stamp rates;

3. Also if you cannot physically remain present then your POA holder should appear on your behalf;

4. Also regarding name change, do you have gazette notification or marriage certificate to establish you are the same person?

5. If not, then an affidavit can be made to that effect;

6. Consult a local lawyer and take steps.

Garima Anil Mehrotra
Advocate, Mumbai
512 Answers
1 Consultation

4.9 on 5.0

Yes a transfer deed has to be executed first so that you become the sole owner and then transfer the property to your parents. Stamp duty has to be paid.

Rahul Mishra
Advocate, Lucknow
11900 Answers
26 Consultations

5.0 on 5.0

You need to come down to India for execution of gift deed

 

2) in alternative you can execute POA in favour of family member 

 

3) POA should be attested before Indian consulate 

 

4) if you have changed your sue name after marriage You would need your marriage certificate. 

5) gift deed would attract stamp duty and registration charges 

Ajay Sethi
Advocate, Mumbai
81077 Answers
5010 Consultations

5.0 on 5.0

1) registeration  charges would be around Rs 30000 

2) stamp duty would  be around 5 per cent of market value of property 

Ajay Sethi
Advocate, Mumbai
81077 Answers
5010 Consultations

5.0 on 5.0

1. The changes in surname will cause no problem while selling the flat which can be done sitting in UK by your husband on the basis of a duly executed and stamped GPA .

2. For stamp fees contact local advocate of registration fees as the same varies with every state. 

Ig gift deed the stamp duty is minimum but it can not be avoided altogether. 

Devajyoti Barman
Advocate, Kolkata
22141 Answers
331 Consultations

5.0 on 5.0

From examining all the facts of your query I want to say that-
These are very common in various Courts of India and Supreme Court of India. You can use the gift deed option. Please understand that any movable or immovable property can be transferred within blood relations without any consideration via a gift deed or a Will. The advantages of having a gift deed is that it can be executed during the lifetime of a donor, unlike a Will which comes into effect only after the death of the testator. 

It is pertinent to mention here that Gift is defined under section 122 of the Transfer of Property Act, 1882 (“TPA” or the “Act”). Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. A gift made include land, actionable claims, mortgages, or goods. The transfer of actionable claims like shares, insurance policies by gift deed is valid after compliance with TPA. The essential characteristics that constitute a valid gift are: (i) the absence of consideration; (ii) the donor; (iii) donee; (iv) subject matter; (v) transfer; and (vi) acceptance.

You can do this via executing Power of Attorney (POA) as you do not wish to come to Mumbai, India. A Power of Attorney is an authority given by an instrument by one person, called the principal, authorizing another person called the Attorney or Agent to act on his behalf. Special Power of Attorney gives the authority to the agent to do some particular or specified act.

To my mind every state in India has a different and prescribed percentage of stamp duty that has to be imposed during the time of registration of a gift deed. The stamp duty on a gift deed is usually lower than that of a sale deed but is calculated as a conveyance that of a sale deed. The criteria for imposing a stamp duty on a gift deed vary from state to state.

In Mumbai, the stamp duty fee differ as per the type of the property which is being gifted, such as:-
In the case of agricultural and residential land, the stamp duty is Rs 100.
In case of any immovable property which is given to a family member, stamp duty is 3% of the market value of the property. If a person other than the family member is giving the property, then, in that case, the stamp duty will be 5%. Maharashtra charges 5% stamp duty on actual sale price or ready reckoner rate, whichever is higher.
Lawyer will draft a gift deed within few hours or may be less. It depends upon person to person. Fees of lawyers also depends upon their experience and other factors. They all charge as per their discretion. Even registration depends upon the workload with the registrar's office but mostly it is a quick process. You even have to pay the stamp fee as per the value of the property which is been gifted.

I have observed in many cases that tax evasion is an illegal practice to avoid paying taxes by a person, organization or corporation intentionally. Underreporting income, inflating deductions, or hiding money and its interest takes place by misrepresentation. According to Supreme Court recent judgment the tax evader if caught, is generally subject to criminal charges and substantial penalties. Similarly, Stamp duty is a tax on land and property transactions. The amount of stamp duty depends on the value of the property. If someone is buying a house or even buying a second home, holiday home or buy-to-let property, he/she will have to pay stamp duty. So, it applies on both transferring of immovable property and renting a house or flat. Hence, Stamp duty is also one of the types of fiscal crime like tax evasion.

You may contact my secretary to connect with me for clarification.
I hope you and your family are safe and healthy. Stay home and be safe during Covid-19.

 

Gopal Verma,
Advocate on Record & Amicus Curiae,
Supreme Court of India

Shri Gopal Verma
Advocate, New Delhi
304 Answers
5 Consultations

4.0 on 5.0

1. It will not cause any issues. 

2. You don't need a transfer for name change. 

 

Yes you can execute poa but the same should be attested in Indian hi commission in your country and then registered in India. 

No you need to pay both stamp duty and registration. It comes to almost 4 to 5 percent of the property value. Stamp duty is negligible if you are blood relative

Prashant Nayak
Advocate, Mumbai
23089 Answers
49 Consultations

4.4 on 5.0

The POA can be executed and notarised in London itself;
2. The same will be applicable in Mumbai;
3. Although it is advised that if you personally visit Mumbai for a week, the transfer process can be expedited and smooth by avoiding any POA holder;
4. The registration charges will be maximum INR 30,000/-;
5. Your husband can release his share to you via a registered deed. The stamp duty for this kind relinquishment will be very less;
6. Once you become the sole owner of the property then you can choose to transfer it via gift deed to your parents;
7. There is no alternate to avoiding stamp duty except by a 'Will';
8. You will have to discuss all facts in detail, share documents and speak personally with a lawyer, then only best guidance can be provided to you

Garima Anil Mehrotra
Advocate, Mumbai
512 Answers
1 Consultation

4.9 on 5.0

1. You can give power of attorney in favor of aunt and she may execute the deed.

2. See for gift deed valuation of property is done based on circle rates which are lower then the market value. The stamp.duty applicable shall be 3 percent.

3. In case husband transfers then in that case on his share i.e. half stamp duty shall be applicable and you shall be absolute owner.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
128 Consultations

5.0 on 5.0

Yes gift deed can be used.

Same name affidavit will solve the purpose. 

If all documents n formalities are completed it would take around 7 days for the transfer.

You be the soleowner, gift it to your mom via POA in favour of ypur aunt.

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

-  As per section 122 of the Transfer of Property Act, a Gift deed is a legal document that represents a transfer of gift from one person to another as per the provisions of the law. 

- Further ,it is valid only if it is given out of love and affection, without any consideration in return by one family member/ friend to another.

- Further , under Section 17 of the Registration Act, 1908, it is mandatory to have a registered Gift Deed when you want to transfer immovable property.

1. Since, the said property registered in your maiden surname , hence after declaring an affidavit for the same that both names are of one persons , you can execute the gift deed .

2. Maximum one week , and stamp duty in Maharashtra is 3 percent for family members.

- Further , even without visiting India you can execute the same after giving a SPA/POA to any relative in India .

Mohammed Shahzad
Advocate, Delhi
6267 Answers
64 Consultations

5.0 on 5.0

1. No. The change in name will not cause any problem if you have published the same in official gazette.

2. The process is not very long. You and your husband will have to execute power of attorney in favour of any person in India to do the registration of gift deed on your behalf. Stamp duty for transfer of property by gift deed to blood relatives is very nominal in Maharashtra. in case of your husband's share full stamp duty would be paid as your parents would not be deemed as his blood relative.

Siddharth Jain
Advocate, New Delhi
5627 Answers
67 Consultations

5.0 on 5.0

You can execute a power of attorney in favour of your aunt and she can do the registration on your behalf to transfer the ownership of the property to your parents. There is no way to avoid paying the stamp duty for registration of gift deed and if anyone advises you the same you should not do it as it would attract huge penalties.

Stamp duty would be payable if your husband transfers the property in your name but in order to save time duty you can ask your husband to execute a relinquishment deed for which the stamp duty is a little less but the same should be confirmed with some Advocate practicing in Maharashtra.

 

Siddharth Jain
Advocate, New Delhi
5627 Answers
67 Consultations

5.0 on 5.0

Yes, an SPA is would work perfectly. (Special Power of Attorney) 

Although, keeping in mind that no sale power is given else it would attract an extra 3% charge on property value. 

 

family transfer won't be needing any stamp paper, only registrar fee.

Abhishek Sharma
Advocate, Chandigarh
119 Answers
2 Consultations

5.0 on 5.0

1. Your husband can execute a POA in  favour of your father and get his signature appended before the appropriate officer of the local  Indian Consulate for sending it to  your Advocte in Thane.

 

2. Based on the said POA, your father can register a gift deed on behalf of your husband transferring his share of the flat in your favour.

 

3. Thus you now become the owner of the flat.

 

4. You thereafter can execute a POA in favour of anybody in India following the process detailed above and he in turn can register a gift deed for you transferring the entire flat in favour of your parents.

 

5. The above procedure can be followed to avoid the high stamp duty to be paid in case of your husband's registering the gift deed for transferring his share of the flat to your parents.

 

6. The problem of your the property in your maiden name can be solved by mentioning the said fact in the POA to be executed by you as advised above. 

Krishna Kishore Ganguly
Advocate, Kolkata
25165 Answers
726 Consultations

5.0 on 5.0

1. Yes, your husband and you can execute POA in favour of your Aunt who in turn will register the gift deed for and on behalf of your husband and yourself.

 

2. However, in case of transferring the share of the flat of your husband to your parents, the stamp duty will be more than the stamp duty to be paid to the blood related and wife for which it was advised in my earlier post to get his share of the flat transferred in your name first for your transferring the entire flat in favour of your parent.  

Krishna Kishore Ganguly
Advocate, Kolkata
25165 Answers
726 Consultations

5.0 on 5.0

The property is held in joint names of both you and your husband.

No doubt you both can jointly execute a registered gift deed but for that you both need to be present physically before the sub-registrar.

Alternately you may give  power of attorney deed in favor of any close relative who should not be a beneficiary to the gift deed. 

Similarly your husband also has to give a power of attorney deed in favor of any of his close relatives in India for this purpose.

After this both the power agents can execute a joint registered gift deed in favor of the person who you choose to acquire this property.

1. You can give the power of attorney deed in your maiden name itself.

You may have to attach a documentary proof to prove your name.

3. The time taken and the stamp duty payable my be enquire from the local people who would try to execute this deed on your behalf.

 

T Kalaiselvan
Advocate, Vellore
71133 Answers
1012 Consultations

5.0 on 5.0

Your husband cannot execute a power of attorney deed in favor of your aunt, he may have to execute a separate power of attorney deed favoring his own close relative.

The stamp duty payable differs from one state to another across the country hence you my enquire about it locally.

You cannot avoid paying the stamp duty because that has to be paid if you want to transfer the immovable property by a registered deed.

Your husband can transfer his share of property to your name by executing a registered gift deed in your favor either by himself or through his power of attorney agent back in India

T Kalaiselvan
Advocate, Vellore
71133 Answers
1012 Consultations

5.0 on 5.0

you can execute a POA  from the country of your domicile through indian embassy. 

In this case, signatures of the notary or judge before whom the POA is executed are required to be authenticated by the duly accredited representative of the Indian Embassy/Consulate.

According to Section 3 of the Diplomatic and
Consular Officers (Oaths and Fees) Act, 1948.
notarising a deed from an authorised officer of the
Indian Consulate/Embassy would be considered a
valid notary. Such a POA is not required to be
stamped at the time of execution. However, it needs
to be stamped within three months from the date of
receipt of the POA in India. Stamp duty would be
payable according to Section 2(17) read with
Schedule-l of the Indian Stamp Act, 1899, when the
deed is presented for registration in India.

stamp duty is state subject varies from state to state. 

Mohammed Mujeeb
Advocate, Hyderabad
19001 Answers
17 Consultations

4.5 on 5.0

1. You and your husband can execute a gift deed.

2. Both of you may execute a GPA in favour of a relative in India to authorise him to execute the gift deed for and on your behalf.

3. The GPA has to be attested before Indian Consulate and then registered in India before jurisdictional sub-registrar.

4. Get the GPA and gift deed drafted by an Indian lawyer.

5. The registration cost of the documents can be stated only by a Mumbai based lawyer.

6. For your gift deed you can seek exemption from stamp duty as your parents are your blood relatives, but they are not related by blood to your husband.

Ashish Davessar
Advocate, Jaipur
30308 Answers
881 Consultations

5.0 on 5.0

1. You cannot execute gift deed from London in favour of your parents instead you can give them a POA verified from Indian consulate.

2. They should first register the POA in registrar office then they can execute gift deed by using that POA. 

3. For change in name you need to make A name declaration affidavit mentioning that your name before marriage was XYZ and now its changed to ABC and both are same person.

 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

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