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kevalsheth   03 June 2015

Unregistered gift deed

We have purchased a residential property which was transferred to the current owner (Mr. A) by his Elder Brother (Mr B)  through a Gift Deed executed in the Year 2004. The Stamp Duty for the same was paid, however, the Gift Deed was NOT Registered. The Society has updated the Share Certificate in the name of Mr. A in 2004 itself. Mr A and his family are residing in the said property since 2004 and all the Utility Bills are in their name. We have paid the Stamp Duty for the said property and have duly registered it. We came to know about the fact of Unregistered Gift Deed when we submitted the papers to the Bank for Loan processing.

Mr A are our neighbors and we assume that they would not try to cheat us, however, we want to be sure to complete all Legal Paper works so that we do not face any problems in the future. Mr. A's Elder brother Mr B has died a couple of years ago and is survived by his Wife and Son. His wife had signed the Gift Deed as one of the witness. What are our Options.

Will making a "Confirmation Deed" duly signed by the Legal Heirs of Mr. B and Registering the same resolve our Issue? What would be the implication of the Deed in terms of cost? Will Mr. A have to pay the Stamp Duty again along with Registration Fees?

Regards,

Keval Sheth



Learning

 6 Replies

saravanan s (legal advisor)     04 June 2015

unregistered gift deed doesnt have any value in the eyes of law.so the transfer of property from b to a itself is not valid and the subsequent sale that happened between you and a also has the same status.the legal heirs of the deceased b has all rights to claim the sale as illegal before the court.

Chandrasen Upadhyay (Legal )     04 June 2015

I agree with Mr. Saravanan on legal side but your circumstances are a bit different like:

- Gift was done about 11 years back

- Property situate in society and shares of society has been successfully transferred to Mr. A and to you thereafter (I assume)

- Stamp duty has been paid on gift deed hence the intention of party was not to evade the Govt. revenue

- Only registration is not done

- Electricity bill, water bill, property tax, maintenance charges etc. I assume, raised in the name of Mr. A and now has been transferred in your name

Hence, it is not an illegal transaction in totality because as per law, society is the owner of the property and you / Mr. A are the member thereof and once the society transfers the share certificate in your name and you are enrolled as member of society then it is next to impossible to challenge the ownership by Mr. B's legal heirs after lapse of 11 years and in second round of sale.

Another apprehension, if you go to Mr. B's legal heir with request for registration, they may come to know about their extinguished legal right in such property and they might create a problem because hopefully the market rate of property would have been doubled or more.

Further, as per well settled law, if possession of a property is not claimed by the owner for at least twelve years then the person who is in the actual possession would be deemed to be the owner thereof, hence in this case after twelve years lapse, Mr. B's legal heirs would not be entitled to claim it.

Advocate Ravinder (Advocate/Attorney)     05 June 2015

The legal heirs of B i.e. wife and son should come to the registration office and they have to execute the gift deed again.  There is no need to pay stamp duty as it was already paid.  If the legal heirs do not come forward to register the gift deed, then you have to file a case for specific performance directing the legal heirs to register the gift deed.  Still they refuse to register the gift deed, the court itself register the gift deed in favour of A. 

 

Merely by changing the shares in favour of A does not confer title.  You have to follow the above.  As advised by Chandrasen, there is danger of claiming Adverse possession by the legal heirs of B.  Still one year is left. Do fast. Otherwise you have to lose the title.  Appoint a good experienced Advocate. 

kevalsheth   05 June 2015

Thank you Mr. Saravanan, Mr. Chandrasen and Mr. Ravinder for your valuable advise.

Mr. Ravinder, I would like to add that the premise is in the possesion of Mr. A and they are residing there since 2004, then, can Legal Heir's of Mr. B claim by Adverse Possession?

Currently, our main concern is the Loan part. We want Loan in a proper way with complete documents. By excuting the Gift Deed again, you mean to say we make a "Confirmation Deed" from the Legal Heir's of B and register this new document or we register the Old Gift Deed. If we have to register the Old Gift Deed, what changes must we do?

Biswanath Roy (Advocate)     07 June 2015

Transfer of title of immovable property in any form and manner must be registered , otherwise it will be invalid.

T. Kalaiselvan, Advocate (Advocate)     20 June 2015

To solve the crisis the legal heirs of the B can either execute a confirmation gift deed or a ratification deed for the previous unregistered gift deed  and get the same registered by paying the registration charges alone since the stamp duty has already been paid. 

This may solve the issue.  Bankers will not grant loan if the papers are not proper or complete in all respects.


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