Yes gift deed is mandatory to be registeredZ unregistered gift deed is not admissible in law
Registered Gift Deeds
There is a husband and wife. They have two children- one son and one daughter.Husband and wife bought a plot together via registered sale deed from a third party. Then they together constructed a basement, ground floor, first floor, second floor and terrace on this plot. After that,the ground floor was sold by both husband and wife to a third party via registered sale deed. After that, an oral settlement(unregistered and not notarized) was done between husband and wife and in this oral settlement first floor and terrace were given to the wife and second floor and basement were given to the husband. After few years, the husband sold the basement to their daughter via registered sale deed. Later, an oral settlement( unregistered and not notarized)was reached between the husband and the son in which second floor went to the son. The current situation is that few years back, the husband has passed away. There is no legal heir certificate because the husband had left a WILL( unregistered and not notarized) in which he has mentioned his movable assets like money in bank accounts and given those to his legal heirs. Currently, there is harmony and consent between the family members and there is no dispute between them. My query: 1.The wife wants to gift her share( first floor and terrace) which she got from oral settlement( unregisered and not notarized) done between her and the late husband as mentioned in the sequence of events above. The wife wants to do a registered gift deed in which she will gift first floor to the daughter. And in another registered gift deed, she wants to gift the terrace to the son.Is it possible to do it? Can she do it? Are there any legal issue possible in going ahead and getting these gift deeds registered?
Asked 5 months ago in Property Law
Religion: Hindu
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17 Answers
Oral settlement is not valid
2) wife can execute gift deed for her undivided share in property
3) terrace cannot be gifted as it forms part of common area fir benefit of all co owners
The wife can transfer the property on her name acquired through family settlement between her and her husband in favor of her son and daughter as per her wish by executing a registered settlement deed in a single deed also mentioning two schedule of properties to both of them accordingly. This is legally valid. There may not be necessary to execute two deeds separately.
Yes, the wife can execute registered gift deeds, but proper documentation is required first.
Legal Validity
Oral family settlement is legally valid - Supreme Court in Kale v. Director of Consolidation confirmed that:
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Oral family arrangements don't require registration when made for family harmony
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Wife has legal heir rights and can transfer property received through valid oral settlement
Essential Requirements for Gift Deeds
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Must be registered - Section 123 Transfer of Property Act mandates registration for immovable property gifts
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Must be in writing and signed by donor (wife)
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Two witnesses required
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Acceptance by donees (children) during wife's lifetime
Quick Action Plan
Step 1: Formalize Oral Settlement (2-3 weeks)
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Execute family settlement deed confirming all previous oral arrangements
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Get all family members to sign - husband's estate, wife, son, daughter
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Register the settlement deed to establish proper title chain
Step 2: Execute Gift Deeds (1-2 weeks)
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Draft separate gift deeds: First floor to daughter, terrace to son
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Complete registration at sub-registrar office
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Pay stamp duty (varies by state, typically 1-3% of property value)
Yes, the wife can execute registered gift deeds for the first floor (to her daughter) and the terrace (to her son) as long as the family is in harmony and there is no dispute among the legal heirs. Although her right over the first floor and terrace arises from an oral family settlement (not written or notarized), Indian law does recognize oral family settlements as valid for partitioning or distributing jointly owned property if all parties have accepted and acted upon such a settlement.
When there is an oral settlement, and it has been fully acted upon and is not disputed by any party, courts uphold its validity, especially in cases involving voluntary family arrangements to avoid litigation. However, since the property is still undivided in official records, there may be a technical legal hurdle while registering the gift deed: the sub-registrar may insist that the wife produces clear title—such as a partition deed or mutation entry in her favor—to execute and register a gift deed for any determined share. The absence of written, registered ownership of specific portions can create procedural difficulty at the time of registration but does not invalidate the underlying intent or family consensus.
If all heirs (wife, son, and daughter) give written, notarized declarations or no objection certificates supporting the oral settlement and acknowledging their individual shares, this can strengthen the documentation and may be accepted by registration authorities to allow the gift deed to proceed. It is also advisable for the wife and children to execute and register a formal family settlement or partition deed before proceeding with the individual gift deeds to ensure no later disputes and to facilitate smooth mutation of property records.
There are no legal issues if the family is in complete agreement, but practical and procedural obstacles (especially at the sub-registrar office) can arise without formal documentation showing the wife's exclusive title to the first floor and terrace. Registration of a gift deed is otherwise valid, and upon acceptance and proper execution, the gift will be effective.
Yes, the wife can execute gift deeds for the first floor and terrace, but legally those gifts will only transfer her undivided share, not absolute exclusive ownership. The better course is to first execute a registered family settlement/partition deed among wife, son, and daughter, and then proceed with the gifts. That way, there will be no risk of title disputes later.
No legal complications but language and drafting of gift deed is important. All depends on the language to avoid future complications.
Dear Client,
While you are presently in possession of the first floor and terrace under the oral family settlement, please note that such oral arrangements, though respected within families, do not constitute a legally strong title since immovable property rights normally require a registered instrument; therefore, while you technically can execute and register gift deeds in favour of your children, there is a possibility that the sub-registrar may raise queries about ownership or that future disputes could question the validity of the oral settlement hence, the safer and more advisable course is first to have all heirs execute a registered family settlement or partition deed confirming the existing arrangement, after which your gift deeds will stand on a clear, undisputed title and be fully defensible in law.
I hope this answer helps, for any further queries, please do not hesitate to contact us. Thank You
In the previous question the "husband" and "wife" are my father and mother. I am the daughter and the "son" in that question is my brother.Like i explained above in the previous question that pertaining to the entire house, the basement and ground floor have been sold off by registered sale deeds. And based on the 2 Oral family settlements explained in the previous question, the second floor is owned by my brother and the first floor and terrace is owned by my mother. The terrace is also like a floor because there is scope of getting a floor constructed on it. Now our requirement is that for the first floor, second floor and terrace, we want to create a registered document. Can we do a revocable trust deed where my mother and my brother become settlors and me(daughter) and my brother's wife become the beneficiaries. The Settlors would be contributing 3 floors( first floor, second floor and terrace) and all these floors would be for common enjoyment of the beneficiaries. My query is that would registrar agree to something like this?
Asked 5 months ago
Private family trust can be created by your mother and brother as settlors and you and your sister in law can be beneficiaries
As i said, all depends on the language of the document.
A registered family settlement deed with the details of settlement of properties as you mentioned here can very well be made by the settlors in favor of the settlees provided the demarcation details are also clearly mentioned therein to avoid future legal complications when challenged.
You need to create a private trust but this will have all the binding provisions a private trust applicable to you
Do a registered family settlement deed first (your mother, you, and your brother as parties). This will put the oral settlements on record and convert them into legal title. After that, you can:
- Either go for the trust route, or
- Directly define shares in the family settlement itself, avoiding the trust structure altogether.
Yes, Registrar Will Accept
Legal Validity
Multiple settlors & beneficiaries structure is perfectly legal under Indian Trust Act 1882.
Mother + Brother as Settlors: No legal restriction on multiple family members being co-settlors.
Daughter + Sister-in-law as Beneficiaries: Extended family members as beneficiaries is standard practice in family trusts.
Registration Requirements
Mandatory Registration: Since involving immovable property (floors), registration is compulsory under Section 17 of Registration Act 1908.
Registrar Acceptance: Sub-registrars routinely accept family trust deeds with mixed settlor-beneficiary relationships.
Required Documents
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Trust deed on stamp paper
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Identity proofs of all settlors and beneficiaries
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Property ownership documents
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Two witnesses required
Key Success Factor
Clear asset description in trust deed: specify first floor, second floor, terrace and define "common enjoyment" rights.
Timeline
2-4 weeks for complete registration process.
Bottom Line: No legal impediments - registrars accept such family trust structures regularly.
Your mother cannot directly gift the first floor and terrace because her ownership is only based on an oral family settlement, which has no legal standing in records.
First, you and your brother (legal heirs) must execute a registered family settlement/partition deed confirming ownership of each floor. After that:
Your mother can validly gift the first floor to you and the terrace to your brother through registered gift deeds.
Or, she and your brother can transfer these floors into a revocable trust deed for beneficiaries’ enjoyment.
Without the registered family settlement, the registrar will not accept either the gift deed or trust deed.
The facts, as stated, are that your parents purchased a plot jointly and constructed a basement, ground floor, first floor, second floor, and terrace thereon. The ground floor was sold jointly by your parents. Subsequently, through oral family settlements, the basement was given to your father, the first floor and terrace were allotted to your mother, and the second floor was given to your brother. Later, the basement was sold by your father to you via registered sale deed. Your father has now passed away, and the oral settlements have been accepted and acted upon for several years. There is no family dispute, and all members are in peaceful possession of their respective portions.
Under Indian law, oral family settlements are valid if they have been accepted, acted upon, and are undisputed among the family members. Courts have consistently upheld such oral arrangements, especially when made to preserve family harmony. Therefore, the oral settlement between your late father, mother, and siblings is legally recognized as valid. However, while legally valid, such oral settlements may not be sufficient documentary evidence before registration authorities. When registering a document such as a trust deed involving immovable property, the sub-registrar typically requires clear documentary title or evidence showing ownership of the specific portion being settled. This is not a question of legality but of procedural compliance for registration.
A revocable family trust can be created under the Indian Trusts Act, 1882. It is a permissible and practical method for estate planning and for managing family property collectively. However, to transfer immovable property into a trust, the settlors must have a clear, legally recognizable ownership interest. While your mother and brother do have equitable ownership in their respective floors under the oral settlement, the lack of formal partition or mutation in their names could cause difficulty during registration. The sub-registrar may ask for supporting documents like a partition deed or registered family settlement confirming their ownership before allowing registration of a trust involving these properties.
To avoid procedural obstacles, it is advisable first to execute and register a family settlement deed. This deed should formally record and confirm the earlier oral family settlement and declare that the family members have already acted upon the arrangement. It should clearly mention that the mother is the owner of the first floor and terrace, the brother owns the second floor, and you are the owner of the basement. This will not constitute a fresh transfer but merely record an existing family arrangement. Once this is registered, each party’s ownership will be legally recorded, and mutation in the respective names can be done in the municipal records.
After recording ownership through the family settlement deed, your mother and brother can then execute a revocable family trust as settlors. The trust deed can declare that they are transferring their respective floors into a trust for common family benefit and that you and your brother’s wife will be the beneficiaries. Being revocable, the trust can later be amended or dissolved if needed. The purpose of such a trust may be to ensure common enjoyment, maintenance, or orderly succession of the property. Once the ownership is formally documented, the registration of such a trust deed will be smooth, and the registrar will have no valid reason to object.
If you attempt to directly register the trust deed now, without a supporting registered family settlement or partition, the registrar is likely to question ownership proof and may refuse registration. Therefore, registering the family settlement first is a legally sound and practical step. It will establish a clear title, avoid future disputes, and make subsequent transactions — such as the proposed trust — legally unassailable.
The family settlement deed should include a confirmation clause clarifying that it only records an existing arrangement and does not transfer new rights. Once this is executed and mutation is completed, the revocable trust can be easily registered with minimal stamp duty and clear title.
Your proposed plan is sound in principle and reflects a harmonious family arrangement. Legally, the trust deed is fully permissible once ownership is clarified. This two-step approach — first registering a family settlement and then a revocable trust — will ensure compliance with legal requirements, avoid registrar objections, and preserve family peace.
If you wish, we can assist in drafting both documents — the family settlement deed confirming the earlier oral arrangement and the revocable trust deed with clear provisions for beneficiaries, management, and revocation. You may contact us for a detailed consultation to finalize the drafting and coordinate the registration process.
Yes, the wife can execute a registered gift deed for her share (first floor to the daughter and terrace to the son), but there are some important legal points to consider.
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Ownership of the Property:
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The wife’s claim to the first floor and terrace comes from an oral settlement with her late husband, which is unregistered and not notarized.
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In law, ownership transferred via an oral settlement is valid between the parties, but it may not be enforceable against third parties or the government without proper documentation.
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Registration of Gift Deed:
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For immovable property, a gift deed must be registered under the Registration Act, 1908.
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Since the wife claims ownership based on an oral settlement, the sub-registration office may insist on proof of ownership. Acceptable proofs include the original sale deed of the entire property, records showing construction, and consent letters from the co-owners or legal heirs.
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Possible Legal Issues:
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Since the husband has passed away, any unregistered oral settlement may be challenged by legal heirs if they dispute the wife’s ownership.
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To avoid future disputes, it is advisable to get a family settlement affidavit executed by all legal heirs (daughter, son, wife) confirming the oral arrangements, and attach it while registering the gift deed.
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Stamp duty and registration fees will apply as per state law for gift deeds.
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In summary: The wife can execute registered gift deeds, but she should ensure that:
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She has adequate proof of her share in the property,
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All legal heirs consent to the transaction (or at least, a formal affidavit confirming the oral settlement),
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Documents are submitted properly at the sub-registrar office.
With these precautions, the gift deeds can be legally valid and enforceable.
