I am a 70-year-old Christian man and have a self-acquired house in Lucknow, where I live. I also have some inherited land in a village in Uttar Pradesh. My children are well-settled in Canada and I want to give all my inherited and self-acquired property to an NGO run by a friend.
Please advise how I can transfer my inherited land to the NGO, which will set up a computer training school for the children in my native town.
I have assumed that the property inherited by you as also your self- acquired property, which you intend transferring to the NGO, stand in your name and you have full disposing power over it. If this is the case, you could donate your above referred properties to an NGO, either during your lifetime (in which event the transfer will take effect immediately) or through your Will (in which case, the transmission will take effect on your death). However, prior to donating the immovable property to the NGO, it would be advisable to confirm whether the NGO’s constitutional documents permits it to accept donations in the form of immovable property.
In case you choose to donate immovable property to the NGO during your lifetime, it will have to be done by a gift deed in accordance with the provisions of Sections 122 and 123 of the Transfer of Property Act, 1882 (“TOPA”).
As per Section 122 of TOPA, a gift of immovable property made voluntarily and without consideration, by one person, called the donor (i.e. the person making the gift), to another, called the donee (i.e. the person receiving the gift), must be accepted by or on behalf of the donee during the life time of the donor.
Further, as per Section 123 of TOPA, the gift of immovable property, must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. The deed would also have to be registered within a period of four months from the date of execution as per the provisions of the Registration Act, 1908. Additionally, since the transfer (through the gift deed), is being effected during your lifetime, it would attract stamp duty.
However, depending upon the State where the immovable property is situated and the manner in which the deed is drafted, you may be entitled to claim a beneficial rate of stamp duty where the settlement of the immovable property is for religious or charitable purposes.
In case, however, you donate/transmit your immovable property to the NGO under your Will, no stamp duty would be payable, but the bequest would take effect only upon your demise. Until then you would retain control of the property.
Also, since Wills are revocable, you would be able to revoke, amend or modify it at any time during your life time. The Will should be duly executed by you in the manner set out in the Indian Succession Act, 1925, which is applicable to Christians.
For this purpose, your Will should be executed by you in the presence of two witnesses competent to contract and your attesting witnesses must attest (i.e. sign) your Will as your attesting witnesses, in your presence and in the presence of each other, after they have seen you executing the Will.
Lastly, please note that even though Section 118 of the Indian Succession Act (which is applicable only to Christians) states that “no man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a Will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons”. The Supreme Court in the case of John Vallamattom versus Union of India (2003 AIR SC 2902) held this provision of the Indian Succession Act to be discriminatory and unconstitutional and struck it down.
Accordingly, registration of your Will would remain optional even whether you leave surviving you, close relatives namely, your children, although the bequest of your immovable property under your Will is for charitable purposes.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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