conditional gift deed can be executed by donor
2) as per gift deed condition can be incoprorated that donee shall maintain the donor during his lifetime
3) condition can be incoprorated that in case donee dies before donor gift cn be revoked
In this case the donee have been given vested interest on the happening of a certain event i.e. death of donor :; so the gift is valid.
2. Yes the gift can be conditional on this ground also since donor has no control on the date of his death.
In Thakur Raghunath Ji Maharaj v. Ramesh Chandra, (2001) 5 SCC 18; it is held by the supreme court of India that conditonal gift is valid. it is not necessary that such condition should be inserted in gift deed, if a separate agreement is made in respect of property gifted then such agreement renders it as a conditional gift.
What you must know when making a gift deed
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
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 donee”
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 canceled”
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 deed”
The decision was given by a bench ofJustice Arun MishraandJustice Indira Banerjee in S. Sarojini Amma v. Velayudhan Pillai Sreekumar[3].
End-Notes
[1] CIVIL APPEAL NO. 10785 OF 2018
[2] (2014) 9 SCC 445
[3] CIVIL APPEAL NO. 10785 OF 2018
Donor can decide whom to make a gift and in what proportion
' x='0' y='0' height='100%25' width='100%25' xlink%3Ahref='data%3Aimage/jpeg;base64,/9j/4AAQSkZJRgABAQAAAQABAAD/2wBDABALDA4MChAODQ4SERATGCgaGBYWGDEjJR0oOjM9PDkzODdASFxOQERXRTc4UG1RV19iZ2hnPk1xeXBkeFxlZ2P/2wBDARESEhgVGC8aGi9jQjhCY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2NjY2P/wAARCAAFAAoDASIAAhEBAxEB/8QAFgABAQEAAAAAAAAAAAAAAAAAAAUG/8QAHRAAAgIBBQAAAAAAAAAAAAAAAQIAEQUSEzFhkf/EABUBAQEAAAAAAAAAAAAAAAAAAAAB/8QAFxEBAQEBAAAAAAAAAAAAAAAAAQARMf/aAAwDAQACEQMRAD8A0WQRzkC28/Qs0PJbQnQtmzXMRGVVe3//2Q=='%3E%3C/image%3E%3C/svg%3E)
To whom your mother gifts the property and in what proportion is the prerogative of your mother.
My mother owns a house and we are two brothers and two sisters. My mother wants to bequeath the house to her sons only as she gave money to my two sisters when they got married in 1999 and 2005, respectively. However, my sisters want equal claim in the house. Can they legally claim that in a court of law? Is it better to just get a will drafted as per my mother’s wish and get it executed when required? Also, my mother wants to bequeath a majority of the property in my name as I have taken care of her for a long time. Can my brother challenge her decision?
Make a gift: If your mother wants to transfer the house to you and your brother during her lifetime, your mother may execute a gift deed, gifting the property to you and your brother in the proportion that she wishes. As per section 122 of the Transfer of Property Act, 1882, a gift is considered valid when it is made voluntarily; it is without consideration, there has been an offer by the donor; and the offer has been accepted by the donee, and the donee actually accepts the gift. Your sisters may challenge the said gift if any of the four conditions have not been fulfilled.
Under section 17 of the Indian Registration Act, 1908, the “instruments of gift of immovable property" is a document that needs to be compulsorily registered. Section 49 of the Registration Act inter alia states that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall affect any immovable property comprised therein unless it has been registered. Thus, if the gift deed is not registered, it can be challenged by your siblings.
Your sisters could also challenge the gift on the ground that the gift deed was executed by your mother as a result of fraud being practised on her or as a result of misrepresentation of facts or under undue influence or that she has not exercised her free will to execute the said gift deed. However, your sisters will have to furnish proof.
It may be noted that to whom your mother gifts the property and in what proportion is the prerogative of your mother so your siblings can’t challenge the gift on these grounds
Make a will: If your mother does not want to transfer the property to you and your brother during her lifetime, she may execute a will and bequeath it in the proportion that she wishes.
A will need not be compulsorily registered. But two competent persons should have signed the will as witnesses.
Your siblings may challenge the will in a court of competent jurisdiction but they will have to prove that it was not executed by your mother while exercising her free will.
No gift, no will: If your mother dies intestate (without a will), then each of your siblings and you will inherit the property in accordance with the laws of succession that govern your mother at the time of her death.
No comments:
Post a Comment