Dear Sir, My wife and me is proceeding for divorce and she insisting me to proceed for a conditional gift deed for transferring my two apartments in Mumbai to my two kids name. My doubt is as follows, 1) Is there any risk to me in executing such conditional gift deed? Now the property is on rental and i'm collecting the rent. Will the kids/ex wife (with the consent of kids) can question this in future? 2) Whether the kids or my ex wife(with the consent of kids) can stay there or sell the property without my permission if such deed is executed? 3) Is there any other hidden issues to me in executing such a conditional gift even if i'm stipulating the conditions? 4) Other than the conditional gift deed is there any deed which i can execute (and could not be revoked by me in future) so that my kids will be the sole owner of the property or enjoy all rights ONLY AFTER MY DEATH. Please reply, Thanks, Manoj
1. You need to include the same in consent terms before court for the said gift deeds.
2. Once you gift you don't have any right in the same.
You need to mention the condition of sale in the same.
3. It's better you first execute gift deed during divorce decree and not wait after the same and fulfill all conditions
1. There is nothing called conditional gift deed. In other words once gift is made the donor looses all semblance of right, title and interest in the property.
2. Again I repeat no such condition can mentioned in gift deed. You can though by way of registered settlement deed put such restrictions.
3. Same as above.
4. Same as above.
- As per Section 122 of the Transfer of Property Act, Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another person called the donee, and accepted by or on behalf of the donee.
- Hence, for a Gift deed, Acceptance is mandatory by the donee , and such acceptance must be made during the lifetime of the donor , and if the donee dies before acceptance, the gift becomes invalid.
- Further, after the acceptance by the donee , gift deed cannot be cancelled unless it is a conditional gift.
- Further, Gifts that involve immovable property should be registered under the Transfer of Property Act,
- It means without registration of Gift deed , the title does not pass on to the donee,
- And further, a Conditional gift is one that is subject to or dependent on a condition.
- Further, a Conditional gift can be revoked if the recipient does not fulfil the conditions attached to the gift.
- Further, a gift is a conditional gift and it is not final until some future event occurs and if the particular event does not occur, the person making the gift has the right to get back the gift.
- As per the Supreme Court in the matter of S. Sarojini Amma versus Velayudhan Pillai reekumar , held that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.
1. The said conditional gift deed should clearly mention that you are only liable to get the rent during your life time , and after death the right would be devolved upon your son . Hence no risk
2. No, Even a property in the name of a minor cannot be sold or transferred without getting court order.
3. Stipulate the conditions clearly
4. You can execute a registered WILL in favour of kid ,
Dear Sir,
You are informed here that the conditional gift deed is not valid and hence you are suggested to write a will on the name of the children and this will, you may revoke any time.
Hi, if you execute a gift deed ,then they shall have full legal rights to sell ,mortgage,alienate the property..However,if kids are of minor age ,the property cannot be sold once till they attain the age of majority...A WILL can be executed in their favour ,which will come into effect after your demise ,however it is revokable
Do not agree for execution of gift deed for 2 flats
2) You can agree for gift deed execution in name of. Hildesheim for one flat only
3) for sale of property court consent would be required as children are minor
4) they can stay in said flat
5) after execution of gift deed they may not agree that rentals should be collected by you for the 2 flats
6) you can execute will bequeathing flats to your children
You will get custody of kids ? If wife than she will be legal guardian and she only will have the right to manage the gifted property. So better execute conditional gift deed that gift will complete on child become major or at the age of 25 years or whatever and before the event reach, you will have the right to cancel the gift deed.
What kind of condition you want to impose ?
Once gift deed executed, child will be sole owner. If you will impose condition that you will be guardian of child than also after 18 years of age.
Or execute conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with you as long as you are alive, gift does not become complete during your lifetime and when a gift is incomplete and title remains with the donor the deed of gift might be cancelled.
1. Firstly the gift deed is absolute and it cannot be conditional you have to execute a gift deed for minor kids by keeping yourself or your wife as guardian for kids.
2. The property can be rented by guardian and rent can be collected. Further it can be sold with the permission of the court as children are minor.
3. You cannot impose conditions in gift .
4. See for that WILL can be made.
You can make WILL or make conditional Gift deed like this way that you will be the guardian of the property and till you are alive the property will be rented and rent belongs to you or vice versa
secondly you can make both your sons joint owner of the property and sharing ratio will be 50% each and rent ratio 100% with you.
There is no such things as conditional gift deed..a gift deed is to be executed as soon as it is entered into between the parties.
1. You can execute a registered Conditional Gift Deed citing your own permanent residing rights in your houses. You would also need to mention that you shall be the "legal guardian" of the children till age of maturity.
2. You may also mention that house cannot be sold /transferred /mortgaged till your life time and other suitable and mutual conditions.
1. If you do not want to transfer your property to anyone, your wife cannot legally force you to do so.
Neither your wife nor your children have any rights in your own and absolute property.
2. If it is your own property then nobody can sell the property other than you.
3. A gift deed cannot be executed with any conditions.
A settlement deed can be executed with the conditions imposed by the donor.
You have not mentioned about the conditions at all hence no opinion can be rendered about the hidden danger in it.
4. A registered settlement deed with lifetime interest vesting on you shall be the best option in this situation.
Dear Sir,
My answers are as follows:
Ans: It depends upon the conditions mentioned in the Gift Deed. Be careful while accepting such conditions.
Ans: Such condition should not accepted.
Ans: No, you need not worry and always keep possession with you.
Ans: You can execute Will
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Deed Of Conditional Gift
Donor can stipulate conditions in a Gift Deed and resort to cancellation on non-compliance
Donor can stipulate conditions in a Gift Deed and resort to cancellation on non-compliance: The Clarification by the Supreme Court of India
An appeal was made to the Supreme Court raising a fundamental question as to the legality and nature of a gift deed wherein the donor reserves his right to possession and enjoyment of the property and the conveyance is subjected to the fulfillment of certain stipulated conditions present in the deed.
The two main issues raised before the court in the present appeal were[1]:
(i) whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift, and
(ii) whether a document in terms whereof the executants of the document retained possession and reserved her right over the property being the subject matter of the document could be a deed of gift or whether such a document was a document in the nature of a will
The appellant in the present case is a widow, aged 74 years, who executed a gift deed in favor of the respondent (i.e. nephew of the appellant) in the expectation that he will take due care of the appellant and her husband and also for some pecuniary consideration. On a plain reading of the deed of gift it could be perceived that the deed will come in effect on the instance of the death of the appellant and her husband and not before.
The appellant in due course of time, in and around, 02.06.1999 executed a deed of cancellation thereby canceling the gift deed so made. To this effect, the respondent approached the court of learned Munsif Sasthamcotta praying to declare the cancellation deed as null and void and for his declaration of title over the suit property. To this the appellant filed another suit praying for a permanent injunction restraining the respondent from trespassing, committing waste or mischief in the suit property. Not going too much into the detailed timeline of the case, the present appeal is brought against the order dated 03.04.2017 of the High Court of Kerela at Ernakulam.
To understand what constitutes as a Gift, the Supreme Court in the case of Naramadaben Maganlal Thakker v. Pranivandas Maganlal Thakker and others, held “Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the done and accepted by or on behalf of the doneeâ€
The Supreme Court vide its judgment clarified that “A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during the lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be canceledâ€
The supreme court has with precision outlined that the conditions stipulated in the deed of a gift does not make the gift invalid and such gift shall be complete only upon fulfillment of the conditions, needless to say, that before such an instance the donor can cancel the deed of gift.
The position which is clarified in the instant case is with regard to the provisions effecting gift under the Transfer of Property Act, 1882 and not with regard to other personal laws on the subject.
For your ready reference, the definition of gift under section 122 of the Transfer of Property Act, 1882 is as under –
“Gift†is the transfer of certain existing movable or immovable 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.
The court to reach on the conclusion on the subject relied largely on the judgment of Reninkuntla Rajamma v. K. Sarwanamma[2], wherein it was held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the done. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance.
The court accepting this judgment was of the view that where a gift deed is executed subjected to certain conditions, the satisfaction of those conditions is of utmost importance and that conditions do not make the gift void neither does reserving the right to enjoy and possess the subject property by the donor.
The Supreme Court concluding the instant case held “We are in agreement with the decision of this Court in Reninkuntla Rajamma that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deedâ€
The decision was given by a bench ofJustice Arun MishraandJustice Indira Banerjee in S. Sarojini Amma v. Velayudhan Pillai Sreekumar[3].
1. Yes ofcourse if you transfers the property, they will object on collecting the rent.
2. Yes.
3. Which conditions.
4. This one only will work
1. What is the condition to be incorporated in the conditional gift deed?
2. The gift deed results in an instantaneous transfer of title from donor to donee, whereupon the donor ceases to have any right, title or interest in the property. You will not be able to collect the rents from the property after the execution of gift deed.
3. Your kids will be free to sell the property on attaining majority. If after the execution of gift deed, the property is to be sold during the minority of kids, the mother will have to seek the permission of the court.
4. If you want the property to go to kids only after your lifetime then make a will.
The gift Deed can be conditional and after fulfill
that condition the property will be transfer and get
the interest in the property otherwise the gift wil
not be completed..
The minors property cannot be sold without the permission from court.
You can execute a WILL .
1. Gift deed cannot be conditional and gift deed executed with conditions is null and void.
2. If you execute gift deed in favour of your minor children then wife or children cannot sell it without permission of court but your consent will not be considered if they want to sell the property.
3. You should make a registered will If you want to give rights of property to your children after your death.
There is no need to do this. They may collect rent and may even sell it. There is no such thing as a conditional gift. The gift is irrevocable and unconditional. She may collect rent and may even sell it.
