There may be several options for a person to transfer property. A Release is however, always an interest or a share and normally the entire property cannot be released. In other words, the whole of property can be sold, mortgaged, settled, gifted or otherwise dealt with. However, in the case of Release, the person in whose favour the release is made usually has a pre-existing interest in the property and qualifies for release on that basis.
Therefore, one has to consider the nature of transaction, the property that is involved and the intention of the parties to determine whether Release would be an appropriate mode of transfer. Part of property can, however, still be transferred by way of sale, settlement, gift, etc. A share or interest in the property can also be transferred as such. Therefore, transferability of a part or a share alone is not the determinant factor and the totality of circumstances has to be considered.
Release itself can be of different modes. It could be a renouncement of a claim by a person in favour of another in respect of a property. This is a simple transaction. There could be a release of a benami right by one person in favour of another. Several rules relating to benami holdings will apply and this is a totally different type of transaction. Further, depending on the degree of relationship between the parties and the location of the property, stamp duty and registration charges may vary.
Co-owners
There can also be a release of right in favour of one or more co-owners. The stamp duty and registration charges will differ on the basis of whether the parties are members of a family or otherwise. Further, within these types of release, the location of the property is also important and may affect the stamp duty and registration charges.
The world “Family” for the purposes of stamp duty and registration charges would cover father, mother, husband, wife, son, daughter and grandchild. In certain cases, it can include adopted father or mother and adopted son or daughter as well.
A gift is a common mode of transfer of property. It is the transfer of certain existing moveable or immoveable property by one person to another and without consideration. The person transferring the property is called the donor.
The person to whom the property is transferred is referred to as the donee. The donee must accept the property during the lifetime of the donor and while he is still capable of giving . In case the donee dies before acceptance , the gift is void. The gift can be effected through a gift deed. Here are some points that need to be considered while drafting a gift deed:
To make a valid gift of property
The donor is the person who gives. Any person who is competent to contract can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer. A gift by a minor is void.
However, a minor can accept gifts. A natural guardian can accept a gift on behalf of a minor with the condition that the person nominated in the gift deed will act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of the minor for the purpose of the property.
For a valid acceptance
The donee is the person who accepts the gift. A minor may be a donee. But if the gift is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains adulthood he must either accept the burden or return the gift. A gift may be accepted by or on behalf of a donee.
A donee may also be a person who is unable to express acceptance. A gift can be made to a child and could be accepted on the child's behalf. The donee must be an ascertainable person.
Process of gifting
A gift involves the process of giving and taking which are two simultaneous and reciprocal acts. There must be acceptance of a gift as well. There is no particular mode of acceptance. It may be express or implied. Further, the property must be accepted by the donee during the lifetime of the donor.
The fact of acceptance can be established by different circumstances such as donee taking the property or being in possession of the deed of gift. If a document of gift, after its execution or registration in favour of a donee is handed over to him by the donor, it amounts to a valid acceptance of the gift.
Competence to contract is an important qualification required for making a gift. A gift to be valid must be made by a person with his free consent and not under compulsion. However, a mere weakness of the intellect would not be sufficient to invalidate the gift.
The gift must be a certain existing movable or immovable property. It may be land, goods, or actionable claims, and must be transferable. There cannot be any gift of future property. A gift must be of tangible property. Only an existing and tangible property is capable of being gifted.
Absence of consideration must
A gift is a transfer without any element of consideration. Complete absence of monetary consideration is an important prerequisite. Where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift.
The transfer of property must be voluntary and made gratuitously. It must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon clear intention to make a gift.
Acceptance
Even when a gift is made by a registered instrument, it has to be accepted by or on behalf of the donee to make it complete , failing which the gift will be void. The law requires acceptance of the gift after its execution, though the deed may not be registered. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession . Delivery of possession is an essential condition for the validity of the gift.
However, it is not necessary that in every case there should be a physical delivery of possession . Possession may be either actual or constructive. The donor should divest himself completely of all ownership and dominion over the gift.
Registration
A gift of immovable property can be made only by a registered instrument. A gift of immovable property, which is not registered, is bad in law and cannot pass any title to the donee. Documents should be stamped with appropriate nonjudicial stamp, registered as required under the India Registration Act and attested by two witnesses. A mere delivery of possession without a written instrument cannot confer any title. A deed cannot be dispensed with even for a property of small value.
