ZigZag 17 February 2026

Transfer of undivided share as gift deed

I have a couple of questions regarding transfer of a common area as undivided share from the builder to apartment owners and would highly appreciate if experts here could provide advise.

Situation

The said property is a multi-tower condominium in Kerala and the handover of the common area to apartment owners was delayed for a long time due to internal disputes and resulting legal stays. Recently the stay was vacated, and an association was formed through an advocate commission appointed by the court. The builder transferred the common area to the apartment owner’s association claiming it is impractical to get all owners appear physically for registration. Many owners have migrated abroad and are no longer residing at the property. The builder also decided to transfer the common area as a Gift Deed claiming no monetary consideration as the owners had already paid compensation for their share of land when they purchased the property several years before.

Ambiguity

The Gift Deed mentions share of each owner and that decisions concerning the common area shall be made based on voting in GBM. There are few concerns and doubts currently w.r.t this Gift Deed.

The owners purchased the property by paying compensation for their share of land and should have ideally got a Sale Deed instead of a Gift Deed. Does the Gift Deed guarantee ownership rights to owners in all scenarios? Say for example a dispute arises in builder’s family in future and his/her assets including the one he/she donated is challenged in court or something similar?
Despite the Gift Deed mentioning that decisions concerning the common area shall be made based on voting in GBM, is it legal for such a body to decide on what to do with someone else’s share of property which he/she legally purchased and has rights? Had it been a regular Sale Deed, wouldn’t GB require consent from all rightful owners to pass a decision (e.g. sell-off portion of the land) and not decide based on simple majority?

Thanks in advance!

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4 Replies

T. Kalaiselvan, Advocate (Advocate) 20 February 2026

Under the Transfer of Property Act, 1882:

A Gift Deed (Section 122) is valid if it is voluntary, without monetary consideration, if it was properly executed and registered and accepted by the donee (association). The legal fact is that a registered Gift Deed transfers absolute ownership, just like a Sale Deed, provided the donor had clear title that the deed is unconditional and absolute and it is properly registered under the Registration Act, 1908. So technically, a Gift Deed is not inferior to a Sale Deed.

P. Venu (Advocate) 20 February 2026

To my knowledge and understanding, as per the extant norms in Kerala, transfer of the common undivided area is inherent to the conveyance of a flat/apartment.

ZigZag 23 February 2026

Thank you Kalaiselvan Sir and Venu Sir for your responses.

Yes, it is inherent but is it normal to have it conveyed via Gift Deed given the fact that buyers pay for the common undivided share of land? By purchasing the land, monetary consideration is established. If the actual conveyance happens after few years for whatever reasons, can the builder still claim no monetary consideration and transfer the common undivided share via Gift Deed?

The other aspect is the ownership of this common undivided share of land. Due to logistical constraints of bringing all owners and executing individual deeds, the builder transferred it to the apartment owner’s association. Hence the Gift Deed mentions only the share per apartment (e.g. TowerB, Flat2C -2%) and not the named owner. And since the association is governed by bylaws, decisions could be made by simple majority voting in general body meetings. Can such decisions be made with simple majority for the common undivided share (e.g. selling or leasing)? Not all owners might participate in GBMs and quite often it would be a majority vote of the minority attendees in the general body meetings. Doesn’t this violate the rights of the other owners?

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 24 February 2026

Transfer of common area to an association of owners is not a gift deed. Whenever a flat is sold to a person the undivided right to use the common area is also sold to the buyer. How can a buyer enjoy the flat without right to use the common areas? An Association is legal entity which can sue and can be sued. When the common area is tranferred to the Association, it is not necessary to mention the particulars of individual members. Transfer of the common areas to the Association is not a voluntary transfer. It is not a gift. The consideration is the consideration received from all the individual members for the transfer of their respective flats.