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GIFT DEED – Registration, Stamp Duty, Documents and Taxability

The term “Gift Deed” comprises of two words namely “Gift” and “Deed”.  Let these two words be understood first in the context of property transactions.

GIFT

The Chapter VII of the Transfer of Property Act,1882 deals with Gifts and the  term “Gift” has been defined in Section 122 of the  Transfer Of Property Act, 1882  as per which Ingredients of a Gift  are as follows:

• it is transfer of an existing property;
• such transfer should be voluntary;
• the property can be immoveable or moveable;
• there should be no consideration for transfer;
• the person making the transfer of the property is called donor;
• the person, whom property is being transferred, is called donee;
• there should be acceptance of the property by or on behalf of donee.

DEED

As per Collins English Dictionary, a document, which  contains  the terms of an agreement, especially concerning the ownership of land or a building, is called a deed . The synonyms of this term are contract, title, document  etc. The meaning of the term “Deed” in the case of a property transaction  is the final and irrevocable legal document by which  ownership of a property is transferred from the seller to the buyer.

GIFT DEED

From the foregoing explanation about the words “Gift” and “Deed”, it can be said that  a Gift Deed is a legal document  through which ownership of an existing asset, whether moveable or immoveable,  is voluntarily transferred from one person to another, with the acceptance of the latter,  without  any consideration. Any gift deed made during life time of both the  Donor and the Donee is termed as “Inter Vivos Gift”. On  the other side, when a  party , acting with an  awareness that his  death is approaching, gives something to another party , the resulting gift is known as a gift causa mortis

MEANING OF “TRANSFER OF PROPERTY”

For meaning of the Transfer of Property, reference may be  made  to the Transfer of

Property Act, 1882 (Section 5 ) as per which

• the transfer of property is an act by which a living person to convey the property in present or in future. The conveyance of that property can be to one or more other living persons or to himself and one or more other living persons and

• “to transfer property” is taken as  to perform such act.

It has been clarified, inter alia,  in this Section that a company or association or body of individuals, whether incorporated or not are included in “living person”.

REGISTRATION OF GIFT DEED – WHETHER MANDATORY

A Gift can be of a moveable or Immoveable Property The position with regard to Registration of such properties is provided below:

Moveable Property

As pwe Section 18 of the Registration Act, 1908,  registration in respectof dome documents is optional. One of such documents provided  in clause (d) of this Section is  instruments (other than wills),  which purport or operate to create, declare, assign limit or extinguish any right, title or interest to or in movable property; As such, registration of a Gift Deed relating to a moveable property is optional.

Immoveable Property

Section 17 of the Registration Act, 1908 provides for documents of which registration is Compulsory. One of such documents provided  in sub-section (1)(a) of this Section is instruments of gift of immovable property. As such, registration of a Gift Deed relating to a immoveable property is Mandatory.

HOW TRANSFER THROUGH A GIFT DEED OF IMMOVEABLE PROPERTY CAN BE EFFECTED

Section 123 of the  Transfer of Property Act, 1882 contains provisions as to how transfer of a property through a gift deed, can be effected. As per the Section, the transfer of the immoveable property, as a gift, must be

1. effected by a registered instrument
2. signed by or on behalf of the donor, and
3. attested by at least two witnesses.

Registered Instrument

Under the context,  the term “Registered” as per Merriam-Webster Dictionary means “having the owner’s name entered in a register”. Section 3 of the Transfer of Property Act, 1882 contains an  interpretation clause as per which “registered” means registered under  this Act i.e. Transfer of Property Act, 1882 in any part of such territories to  which this Act extends, for the time being in force, through which the registration of documents are regulated .

The Term “instrument” as per interpretation clause in Section 3 of the Transfer of Property Act, 1882 means a non-testamentary instrument. As a  testamentary document is a will, so it can be said that, any document,  which is not the same as the nature of a will,  is called an instrument.

Section 3 of the Transfer of Property Act, 1882 contains an  Interpretation clause as per which instrument” means a non-testamentary instrument;“ “Instrument” has, in the context, a restricted meaning and refers to a document through which a transaction effectuated.

From the above, it can be said that Registered Instrument means  a non-testamentary instrument through which   owner’s name is entered in the  register by following provisions of the Transfer of Property Act, 1882.

Attestation by at least Two Witnesses

In the  Interpretation clause contained in Section 3 of the Transfer of Property Act, 1882 the term “attested”, in relation to an instrument, has been defined according to which there must be two or more attesting witnesses. Other provisions contained  in the definition include certain requirements relating to signing of the instrument by each of the witnesses and the Executant or  some other person in the presence and by the direction of the executant. No particular form of attestation has been prescribed.

ELEMENTS OF A GIFT DEED OF AN IMMOVEABLE PROPERTY

• Details about the Donor and the Donee– The Deed of Gift  should include  the names, addresses, relationship, if any, and other identifying information for all parties involved.

• Details of the Property –Complete details about the property, including dimensions, plan, and area details, should be stated. It needs to be mentioned that the property is free  from all encumbrances of any and every nature whatsoever including but not limited to liens, claims, liabilities, charges, acquisitions, injunctions or attachments from any Court of Law, reversionary rights, residuary rights, mortgages, trusts, demands, gifts, legal disputes, difference,  notices, notifications prior sale and flaws etc.

• Ownership of Property– There should be a clearly mentioned in  the gift deed  that the property in question is in existence and the donor is the absolute owner of the said  property,.

• Consideration– The gift deed should mention that the property has been transferred by the Donor, out of natural love and affection for the Donee, and without any other consideration.,

• Acceptance of Gift by the Donee– In  the  Gift Deed, a mention should be made about the acceptance of the Gift by the Donee as also that he has taken-over the possession of the property from the Donor.

• Transfer by own free will– The gift deed should mention that the donor  of his/her own free will  and  without any pressure, undue influence or coercion from any side, has transferred the property to the Donee

• Rights of the Donee– The gift deed should clearly  mention that  the Donee  has full rights  to enjoy the property peacefully and is not barred from selling or mortgaging or leasing the property.

• Delivery of Possession– The gift deed should mention the date on which the donor has been  delivered the possession of the gift property.

• Witnesses– At least two witnesses are required as proof along with their complete name and address details on the document

• Place and date: The Gift Deed should indicate the Place at which and the date on which  it has been executed.

STAMP DUTY AND REGIDTRATION CHARGES ON A GIFT DEED

Section 17 of  The Registration Act, 1908, as applicable to respective States in India, provides that,  any transaction,  as mentioned in the Act,  of an immoveable property of the value of above Rs.100/-  is required to registered. As such, generally, the Gift Deed of an Immoveable property is required to be registered and the applicable Stamp Duty and Registration charges  are required to be paid.

As regards Stamp Duties, same are governed by the Indian Stamp Act, 1899 as well as respective Stamp Acts of the State Governments. The Central Government  has a  power to impose Stamp duty  on a certain specified Instruments and on other instruments, which include Sale Deed/Gift Deed,  the power lies with the State Governments.  Thus, depending upon the State in which the property comprised in the Gift Deed is located, stamp duty and registration charges are to be paid.  The Stamp duty on a Gift Deed is in the  range of 2%-7% on the value of the property, which generally, in the case of a gift deed, is calculated taking into account the applicable Circle Rate in the State.

The following table provides  Stamp duty Rates  and Registration Charges on  a Gift Deed in some of the  States in  India:

STAMP DUTY IN THE CASE OF A GIFT DEED TO A RELATIVE

In some of the States in India, some  rebate, concession or a discount is provided in case the Gift Deed is made in favour of  any of the prescribed blood relatives. The following table provides  Stamp duty Rates on  a Gift Deed in some of the  States in  India in the case of a Relative

RELATIVE

As per Section 2(41) of the The Income Tax Act, 1961, The following are treated as a relative  in relation to an individual:

• husband,
• wife,
• brother
• sister
• any of the lineal ascendants or descendants of that individual

DOCUMENTS REQUIRED FOR REGISTRATION

As the Gift Deed is required to be registered, following documents may be required for the purpose:

• Gift deed in original
• Identity Proof  of  both the Donor and the Donee (Adhaar Card, Driving License)
• Permanent Account Number (PAN) Card of the donor and the donee
• Identity Proof of Witnesses to the Gift Deed
• Sale deed or Title deed for verification to prove the identity of the ownership of the Donor
• Passport size photographs

OTHER PROVISIONS RELATING TO GIFTS

• GIFT OF EXISTING AND FUTURE PROPERTY

In case a gift comprises of both an eisting property and a future property, it will be void as regards fututr property in terms of Section 124 of the Transfer of Property Act, 1882.

• GIFT TO SEVERAL, OF WHOM ONE DOES NOT ACCEPT

As per Section 125 of the Transfer of Property Act, 1882, if a gift of a thing is made to two or more donees and that gift is not accepted by one of the donees, in such a case that  gift will be void as to the interest, which that donee would have taken in  the case of having  accepted the gift.

• SUSPENSION OR REVOCATION OF THE GIFT

In terms of  Section 126 of the Transfer of Property Act, 1882,  A donor and a donee may agree that on the happening of any specified event,  the  gift made by the donor shall be suspended or revoked provided that that event  should not  depend on the will of the donor,   On the other hand , even if parties agree that the gift, whether  wholly or in part, shall be revocable at the mere will of the donor,  such a gift shall, as the case may be, void wholly or in part.

Revocation of a gift can also be made in any of such cases (save want or failure of consideration)  in which it might have rescinded in case it were a contract. Section 19 of Indian Contract Act, 1872 provides for recession of  a contract the in case of coercion, undue influence, fraud and misrepresentation.

Further, save as aforesaid, a gift cannot be revoked

It may also be noted that nothing contained in section 124 of the Transfer of Property Act, 1882  shall be deemed to affect the rights of transferees for consideration without notice.

• ONEROUS GIFTS:

The meaning of the word ‘onerous’  is constituting, imposing or involving a burden. Onerous Gifts are those  where the liability or the burden is in excess of the actual market value of the subject under consideration. Thus it can be said that  Onerous gifts are such gifts as are  liabilities rather than an assets. The word ‘onerous’ means burdened. It is within the rights of the donee to reject such gifts.

Section 127 of the Transfer of Property Act, 1882 relates to Onerous Gifts. As per this Section,

• in a case, where a gift, comprising of several things, is in the form of a single transfer to the same person and only one of such several things is burdened by an obligation, the donee, unless he accepts the gift fully, cannot take anything by the gift.

• Further, in a case, where a gift, comprising of several things, is in the form of two or more separate and independent transfers to the same person, the donee may choose to accept one of the transfers  and refuse the others even if the chosen one is beneficial and the others are onerous.

ONEROUS GIFT TO DISQUALIFIED PERSON

Where a  donee accepts any property burdened by any obligation although he himself does not have competence  to contract, he is not bound by his such acceptance.  However, where after becoming competent to contract and, being aware of the obligation, the given property is retained by the done, he becomes  bound.

UNIVERSAL DONEE

As per Section 128 of the Transfer of the Property Act, 1882 provides, subject to the provisions of section 127, which relate to Onerous Gifts,  that where a gift consists of the whole property of the donor, the donee is personally liable, to the extent of the property comprised therein, for all the debts due by and liabilities of the donor at the time of such gift.

INCOME TAX ON GIFTS OF IMMOVABLE PROPERTY

Any gift of an immovable property, if its value without consideration exceeds Rs. 50,000,  is taxed under the Income Tax Act. In such a case, the whole sum is subject to taxation. However, in case,  a Gift of immovable property is received for insufficient consideration, the difference between the consideration and the stamp duty value shall be taxed in the under the head ‘Income from other sources’. A Gift of immoveable  from a relative mentioned in  Section 2(41) of the The Income Tax Act, 1961 is exempt from income tax regardless of the amount.

CONCLUSION

A gift deed is a legal document  through which the ownership of a moveable or immoveable property is transferred  without any monetary consideration.  The Gift Deed should be properly drafted  so that the  desired objective is fulfilled.