Donor can decide whom to make a gift and in what proportion
2 min read . 08 Oct 2012To whom your mother gifts the property and in what proportion is the prerogative of your mother.
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.
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
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.
With an increasing number of cases of delayed real estate projects in India, it is important for homebuyers to know their rights and the legal course of action to uphold the same. Here are some legal measures a homebuyer can pursue in case the project is inordinately delayed.
A delayed real estate project is the biggest nightmare for a homebuyer since it results in huge monetary loss and mental agony. While earlier, the absence of standard regulations led to years of litigation and thus, delayed possession timelines, the scenario has significantly improved after the enforcement of the Real Estate (Regulation and Development) Act, 2016 (RERA).
RERA has not only enabled a regulatory framework and provided an avenue to fast-track dispute resolution, but has also infused the much-needed transparency into the sector. This has resulted in reduced incompetence and delays and established a pan India model for construction practices. The Act also hypothesises builders’ accountability towards consumers and categorically defines a series of actions a homebuyer can take in case a builder refuses to handover the project within the stipulated time or perpetually extends the possession deadline.
Primarily, the word delay means that a promoter/builder in the agreement of sale has agreed to complete the project and give the possession of the property within a period but has failed to do so.
Sudhir Reddy, Founder, Reddy and Reddy Law Firm, avers that in case a builder delays the project delivery beyond a period as agreed upon in the agreement for sale, then the aggrieved homebuyer can take legal action against the promoter.
Legal recourse for delayed projects under RERA: Filing the complaint
Claim refund
“RERA allows a homebuyer a choice of seeking either interest on delayed possession or a complete refund of the money paid along with interest thereon. However, if the builder fails to provide the desired compensation, severe penalties have been rolled under RERA ranging from imprisonment to registration cancellation,” shares, Vineet Naik, Senior Advocate, Bombay High Court.
Legal recourse outside the ambit of RERA
Under the Consumer Protection Act, 1986, a homebuyer can register a complaint under Section 2(1) (c) for deficiency in services. The term deficiency in services refers to any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained as as per the law.
As per the latest ruling by the National Consumer Disputes Redressal Commission (NCDRC), buyers can seek refund from the developer if the possession of the house or a flat is delayed beyond one year. Depending upon the value of the property, buyers can approach NCDRC in the following courts:
Know how to file a complaint in consumer court against real estate builders?
Additionally, the Domestic Building Contracts Act, 1995 also protects homebuyers’ rights in case a builder inordinately delays the possession of the property. The Act oversees if the project construction is as per the approved plan and is completed within pre-decided time or not. Besides, it also administers the construction quality of the project.
Overall, the execution of RERA has eased out the process of complaint registration in case of a delayed project. Homebuyers are also confident of faster and fair resolutions under the law. However, it is imperative to do due diligence. One must only invest in a project by a credible builder with an excellent past record and market reputation and stay abreast of the latest changes in the rules and regulations of the real estate sector.
Utharappalli River (ഉത്തരപ്പള്ളിയാർ ) is the 45th River of Kerala though not listed under major rivers of Kerala.
With a length of 18 Kms connecting directly from Achankovil River , Venmani, Alappuzha District to Pamba River and with two major tributaries totaling a length of 34 Kms , is definitely one of the major river network in south Kerala.
Utharappalli River used to meet the drinking water and agricultural requirement of around 100,000 people spread across 70 Sq Kms Area in five Panchayaths of Alappuzha District.
With insensitive development projects, encroachments , the water flow ceased to exist and river running dry through out the year even though both connecting to rivers with plenty of water.
In addition to above during Rainy season and and even with minor shower, the entire area floods as there is no way to drain the water.
Irrespective of winning the case in Hugh Court to restore the river to its pristine glory, no action being taken at departmental level.
The plight of River can be seen in videos' and news paper reports available in the Facebook group of activists.
Currently the population of 100,000 people around the river having acute water shortage, loss of agriculture and suffering severe illness due to water pollution.
2. റവന്റ് രേഖകളിൽ നിന്ന് കേസിന്റെ വസ്തുതകൾ എനിക്കറിയാം, മൂന്നാം പ്രതിയുടെ പേരിൽ ഈ മറുപടി പ്രസ്താവന സമർപ്പിക്കാൻ എനിക്ക് അധികാരമുണ്ട്.
3. മേൽപ്പറഞ്ഞ യഥാർത്ഥ അപേക്ഷയിൽ അടങ്ങിയിരിക്കുന്ന എല്ലാ ആരോപണങ്ങളും അവഗണനകളും പൂർണ്ണമായും ശരിയല്ല, അതിനാൽ ഇവിടെ പ്രത്യേകമായി പ്രവേശിപ്പിച്ചിട്ടുള്ളവ ഒഴികെ അത് നിഷേധിക്കപ്പെടുന്നു.
4. മെഡിക്കൽ എഡ്യുക്കേഷൻ ഡയറക്ടറേറ്റിന് കീഴിലുള്ള തസ്തികയിലേക്ക് ജീവനക്കാരെ റിക്രൂട്ട് ചെയ്യുന്ന സ്ഥാപനമാണ് ആദ്യം പ്രതികരിക്കുന്നതെന്ന് സമർപ്പിക്കുന്നു. ഒഴിവ് വരുന്നതിനാൽ, മെഡിക്കൽ വിദ്യാഭ്യാസ ഡയറക്ടറേറ്റ് അത് കേരള പബ്ലിക് സർവീസ് കമ്മീഷന് റിപ്പോർട്ട് ചെയ്യും. തസ്തികയിലേക്കും നിയമന രീതിയിലേക്കും യോഗ്യത നിശ്ചയിക്കുന്ന ഒരു സർക്കാർ ഉത്തരവ് ഉണ്ടാകും. സർക്കാർ ഉത്തരവുകളുടെ അടിസ്ഥാനത്തിൽ യോഗ്യതയുള്ള ഉദ്യോഗാർത്ഥികളിൽ നിന്ന് ഒന്നാം സ്ഥാനക്കാരൻ അപേക്ഷ ക്ഷണിക്കുന്നു.
5. റിപ്പോർട്ടുചെയ്ത ഒഴിവുകളിലേക്കുള്ള തിരഞ്ഞെടുക്കൽ പ്രക്രിയ നടത്തുന്നത് ഒന്നാം പ്രതിയുടെ അധികാരവും നിയന്ത്രണവും കൊണ്ടാണെന്ന് സമർപ്പിക്കുന്നു. പവർ അലക്കു അറ്റൻഡർ തസ്തികയിലേക്കുള്ള യോഗ്യത എട്ടാം ക്ലാസ് പാസായതോ അല്ലെങ്കിൽ ഇലക്ട്രിക്കൽ ലൈൻ ഹെൽപറോ ലേസറോ ആയി ഒരു വർഷത്തെ പരിചയവും. നിർദ്ദിഷ്ട ഗസറ്റ് അറിയിപ്പിനേക്കാൾ ഉയർന്ന യോഗ്യത അപേക്ഷയ്ക്ക് ഉണ്ടെങ്കിൽ, അദ്ദേഹം കേരള പബ്ലിക് സർവീസ് കമ്മീഷനെ കൃത്യസമയത്ത് അറിയിക്കണം. സെലക്ഷൻ നടപടിക്രമത്തിൽ മൂന്നാമത്തെ പ്രതിക്ക് പങ്കില്ല.
6. ഒരു സർക്കാർ വകുപ്പിൽ ഒരു ഒഴിവ് ഉണ്ടാകുമ്പോൾ നിലവിലുള്ള സംവിധാനമനുസരിച്ച്, ഒന്നാം പ്രതിയാണ് തസ്തികയിലേക്കുള്ള തിരഞ്ഞെടുപ്പ് പ്രക്രിയ നടത്തുന്നത്. പവർ അലക്കൽ അറ്റൻഡർ തസ്തികയിലേക്കുള്ള യോഗ്യത എട്ടാം ക്ലാസ് പാസാകണം അല്ലെങ്കിൽ ഇലക്ട്രിക്കൽ ലൈനായി ഒരു വർഷത്തെ പരിചയം. സഹായി അല്ലെങ്കിൽ ലേസർ. നിർദ്ദിഷ്ട ഗസറ്റ് അറിയിപ്പിനേക്കാൾ ഉയർന്ന യോഗ്യത അപേക്ഷയ്ക്ക് ഉണ്ടെങ്കിൽ, അദ്ദേഹം കേരള പബ്ലിക് സർവീസ് കമ്മീഷനെ കൃത്യസമയത്ത് അറിയിക്കണം. തസ്തികയിലേക്കും നിയമന രീതിയിലേക്കും യോഗ്യത നിശ്ചയിക്കുന്ന സർക്കാർ ഉത്തരവിന്റെ അടിസ്ഥാനത്തിൽ കേരള പബ്ലിക് സർവീസ് കമ്മീഷൻ സ്ഥാനാർത്ഥിയെ തിരഞ്ഞെടുക്കും. മൂന്നാമത്തെ പ്രതിക്ക് തിരഞ്ഞെടുക്കൽ നടപടിക്രമത്തിൽ ഒരു പങ്കുമില്ല, ഒന്നാം പ്രതിയുമായി കൂടിയാലോചിച്ച് സർക്കാർ നിയമനവും യോഗ്യതയും നിശ്ചയിക്കുന്നു. ഇക്കാര്യത്തിൽ എന്തെങ്കിലും വ്യത്യാസങ്ങൾ സർക്കാർ നിയോഗിക്കുന്ന ബന്ധപ്പെട്ട ഫയലിലെ വിദഗ്ധർ തീരുമാനിക്കും.
ഈ സാഹചര്യങ്ങളിൽ, യഥാർത്ഥ അപേക്ഷയിൽ യാതൊരു യോഗ്യതയുമില്ലെന്നും അത് നിരസിക്കാൻ ബാധ്യസ്ഥമാണെന്നും വിനീതമായി സമർപ്പിക്കുന്നു. യാതൊരു യോഗ്യതയുമില്ലെന്നും അത് നിരസിക്കാൻ ബാധ്യസ്ഥമാണെന്നും വിനീതമായി സമർപ്പിക്കുന്നു.
This is the most important piece of paper required for property purchase. Sale deed has to be produced in original as it establishes the ownership of title of the property. You need to register the sale deed in the Sub- Registrar's Office of the area where the property is located.
Also Read: Important Clauses in Sale Deed
ExtractsKhata certificate or extract is known by different names in different states and is an important document for the registration of a new property. It is also required if you want to transfer the ownership of the property at a later stage. This document is a proof that the property has an entry in the local municipal records and the construction has been done according to an approved plan. Banks ask for this paper before granting you a home loan.
Mutation register extractThis specific document is for Gram Panchayat properties and provides the details of previous ownership. Though not required in original, this is mandatory to produce if the property you are buying is in Gram Panchayat jurisdiction.
General power of attorneyThis document is required to prove whether the sale or purchase of a particular property is being done by an authorised person on behalf of the owner of the property. This has to be produced in original for getting a home loan.
Copy of building planA buyer must acquire a copy of the building plan approved by the statutory body to establish that the construction of the property is legal and is done according to set rules and regulations.
No-objection certificates (NOC)There are as many as 19 NOCs that have to be acquired by a developer from different authorities while building a housing project. However, the number may vary according to specific state rules. Ask your developer to provide you the copies of these NOCs, and keep it in your personal record.
Allotment letterAn allotment letter is one of the most important documents required for getting a home loan. It is issued by a developer or the housing authority, stating the description of the property and details of the amount paid by the buyer to the developer. Do keep in mind that an allotment letter is not the same as an agreement of sale. An allotment letter is issued on the letterhead of the authority while a sale agreement is documented on a stamp paper. Moreover, an allotment letter is issued to the first owner and other owners can ask for the copy of the original letter from the seller.
Sale agreementThis document lists all kind of information about the property ― the terms and conditions, the possession date, the payment plan, the specifications, the details about the common areas and facilities, etc. The agreement also holds the developer responsible for the construction of the property. This document has to be produced in original for property purchase and acquiring home loan.
Possession letterThis document is provided to the buyer by the developer, and sets a date on which the latter would grant the former the possession of the property. The original copy of this document has to be produced for getting a home loan.
Also Read: Must Know Facts About Possession Letter And Occupancy Certificate
Payment receiptsCollect original payment receipts from the developer if you are buying a new property. If you are buying a resale property, ask for a copy of receipts from the seller to be produced to the bank.
Property tax receiptsProperty owners have to pay taxes. Ensure that the previous occupier/owner had paid property taxes and there are no pending due. Property tax receipts also help in proving the legal status of the property.
Encumbrance certificateAn encumbrance certificate is required to prove that the property does not have any pending legal dues or mortgages. This is one of the key documents banks ask for before they grant you a loan. This certificate also has all the details related to the transactions happened over a period of time. In India, a Form 15 is issued if a property has any encumbrance registered; otherwise, a Form 16 will be given to the owner, stating there are no encumbrances.
Completion certificateThis document is required for getting a home loan. This paper establishes the fact that the building is constructed according to an approved plan.
Occupancy certificateAn occupancy certificate is issued by the local authority to the developer to establish the building is finally ready to be occupied and the construction has been done according to a sanctioned