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A donor must own the property that she wants to gift

A donor must own the property for the purpose of gifting it

My uncle owns two houses: house 1 is his father’s property, and house 2 is his own. He wants to gift the first to his younger daughter and the second one to his eldest daughter. Do both daughters have to sign for both the registrations?

—M.K. Jain

We are assuming that house 1 is a joint Hindu family property which came to your uncle on partition or that he acquired it through testate or intestate succession from his father and that in either case, house 1 is now in your uncle’s name. We are also assuming that house 2 is your uncle’s self-acquired property. We are assuming that he now has the sole right to dispose both properties as per his own wishes.

The gift of immovable property must be in accordance with section 122 of the Transfer of Property Act, 1882 (TOPA). A gift is considered to be valid only when (i) it is made voluntarily; (ii) it is without consideration; (iii) there has been an offer by the donor; and (iv) the offer has been accepted by the donee. Thus, for the gift to be valid, your uncle must transfer his share of the property voluntarily, without consideration and it must be accepted by his respective daughters during his lifetime while he is still capable of giving. The transfer must be effected by a registered and stamped instrument signed by or on behalf of your uncle and must be attested by at least two witnesses in accordance with section 123 of TOPA. The donee would also normally sign the gift deed to evidence acceptance of the gift being made.

It is mandatory to register a gift deed with the sub-registrar of assurances as per section 17 of the Indian Registration Act, 1908. Else, the transfer will be invalid. Thus, on execution of the document, it will have to be registered with the office of the sub-registrar of assurances within whose sub-district the whole or some portion of the property is situated, within four months of the date of execution of the gift deed. Applicable registration charges will be levied.

House 1: A donor must own the property for the purpose of gifting it. So, if your uncle is now the owner of house 1, he can gift it to his daughter. But if the house came to his branch of the family by partition or intestate succession and belongs to a Hindu Undivided Family (HUF), members, which will it doesn’t solely belong to him but equally to all HUF include him and his two daughters. This means your uncle can only deal with his share of house 1 and can’t gift the entire house to his younger daughter.

House 2: Since this house is the self-acquired property, your uncle can gift the whole house as he wants to his elder daughter.

Based on sections 32 and 34 of the Indian Registration Act, 1908, if an instrument of gift of immovable property is executed by the donor and donee, both the donor and the donee (or permissible representatives), have to appear before the registering officer within four months to get the instrument validly registered.

As per section 32, every instrument for the purpose of registration shall be presented at the proper registration office inter alia by “some person executing or claiming under the same".

However, section 34 mandates the registering officer to not register the instrument unless all the persons who executed such an instrument, or their representatives, assigns or agents authorized under the Act, appear before the registering officer within four months from the date of presentation of such an instrument for his satisfaction regarding the identity of persons and fact of execution.

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