Photo: iStock
Photo: iStock

Stamp duty on gifted property depends on mode of transfer

The stamp duty of the relevant state where the land is situated is applicable when such land is transferred

My 54 years old brother is an autistic patient. He is unmarried and I have been taking care of him. We had inherited 2 acres of land from our father. However, our sister was not given any share. My brother now wants to transfer his land to me but our sister is objecting to it. What can be done so that there is no legal challenge to this?

—Name withheld on request

Assuming that you and your brother have inherited the land through the Will of your father and further assuming that the Will has not been challenged till date and that you and your brother are the absolute owners of the land, your brother can relinquish his share in the land by way of a release deed or a gift deed, duly registered in your favour.

However, kindly note that the same might be open for challenge by your sister considering your brother has an autism spectrum disorder and she is well within her rights to do so. The release deed or the gift deed that will be executed can be supported by a medical certificate issued by a medical practitioner who specializes in the field of autism spectrum disorder. This will certify that he is capable of understanding and forming a rational judgement.

We suggest that this medical practitioner also be a witness to the execution of the gift deed or release deed.

Such medical certificate and the witnessing of the execution by the medical practitioner can be helpful to prove such a deed, if the same is challenged.

My father is a Muslim and my mother is a Hindu. Both had inherited some land 10-15 years ago. They recently died in an accident and there’s no Will. Both of them were the co-owners in two apartments. Which succession law will apply for inheritance of these properties? I have two sisters and a brother.

—Name withheld on request

Firstly, we have assumed that the marriage of your parents is not governed under the Special Marriage Act, 1954. Thus, in such cases, the Supreme Court has concluded that the marriage of a Muslim man with an idolater or fire worshipper, who is a Hindu, is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born out of such wedlock is entitled to claim a share in his father’s property and since your father is a Muslim, it will be as per the Muslim personal laws.

The children born out of such a marriage are also entitled to claim their share in the ancestral property of their parents, which in your case was crystallized during the lifetime of the parents. So, if your mother was entitled to receive some property from her father and during the lifetime, your mother’s rights did crystallise, then the children will become entitled to the mother’s share in such property.

What is the right procedure to transfer land ownership from a father to a son? What are the charges involved?

— Chanrakant Dahipale

To answer the query, we have assumed that your father is an absolute owner of the land and the land neither forms a part of an ancestral property nor is held by him as the karta of a Hindu Undivided Family (HUF).

In such a scenario, your father can absolutely, as per his discretion, either transfer the land to you by duly executing and registering a sale deed for a valid sale consideration which should, ideally, not be less than the circle rate or market rate, which is prevalent in the area where the land is situated or gift the same to you by duly executing and registering a gift deed in your favour under the provisions of the Transfer of Property Act, 1882 and Indian Registration Act, 1908 and the consideration there would be the love and affection of your father for you, his son.

The stamp duty on the transfer will vary depending upon the mode of transfer of the land that your father opts for and further on the place where the land is situated. The stamp duty of the relevant state where the land is situated will be applicable under the relevant and applicable state laws.

Aradhana Bhansali is partner, Rajani Associates. Queries and views at mintmoney@livemint.com

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