The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the following Q&A which was published by the Mint Newspaper on 3rd March, 2020 and the online edition of the same can be found at: https://www.livemint.com/money/personal-finance/gifts-deeds-are-not-reversible-so-the-giver-can-t-get-back-the-rights-11583220828729.html
My mother and I co-own a residential property in Mumbai. She has decided to transfer her share of the property to my name. Should we prepare a gift deed or a relinquishment or release deed to execute this transfer? The property has been mortgaged to a bank, but I have obtained a no-objection certificate (NOC) for the transfer. Will I also have to ask the housing society in which the property is located to transfer the share certificate to my name? Can I include a clause in the deed to ensure that if I am survived by my mother, the rights will be transferred back to her upon my death?
It is highly advisable that your mother executes and registers a gift deed in your favour for gifting her share in the residential property. In Maharashtra, the applicable stamp duty for a gift deed of a residential property by a mother to son is ₹200. The stamp duty on a release deed is ₹200 only if the property is an ancestral one. If the property in question is not ancestral, the release deed would not be efficient from the stamp duty perspective. You will also need to pay 1% of the ready reckoner value of the flat as surcharge on the gift deed as metro cess.
You have rightly obtained the NOC of the bank to which the flat has been mortgaged, permitting your mother to gift her share in the property to you. Prior to execution of the gift deed, you will also be required to obtain the NOC of the housing society. Once that is granted, your mother can execute and register the gift deed in your favour.
Along with the gift deed, you should also have your mother sign the housing society’s share transfer forms for transferring her share in your favour, as well as delete her name from the share certificate. Once you submit a copy of the registered gift deed and the share transfer forms to the housing society, along with the original share certificate, they will initiate the process of deleting your mother’s name from the certificate.
Please note that as a gift is not reversible in nature, a clause for the reversion of rights to your mother upon your death cannot be inserted into the gift deed. However, the same can be bequeathed back to your mother, or any other person that you may choose to appoint as the beneficiary, in your Will. As a Will does not need to be registered or stamped, it can be executed easily.
We have an inherited property which is to be divided equally among three brothers and two sisters. One of the sisters and two brothers have decided to give up their shares. What agreement needs to be signed so that no disputes can arise in the future?
—Name withheld on request
A person who receives a legacy under a Will, or who receives a property after the death of a person, is called the legatee or legal heir. Accordingly, in your case, the three brothers and two sisters would be the legal heirs of the property being inherited.
The share that each of them received as a result of the inheritance you mentioned is vested absolutely in them. These shares can be legally transferred or gifted or given through a Will to any person, as per the choice of the legal heir. Hence, it would be the right of the respective heirs in question to decide how to deal with their share in the inheritance. This will also include the right to relinquish their share in the inheritance in favour of another legal heir.
In your case, they can execute a relinquishment deed (also known as a release deed) or gift deed in favour of the desired legal heir(s) who will take over the property. This relinquishment deed or gift deed, as the case may be, should be stamped and registered by the concerned sub-registrar of properties. In some Indian states, stamp duty is not payable on a document through which a property has been transferred in favour of a blood relative.
In the given case, more than one of the legal heirs intends to relinquish their share in the inheritance. Thus, all the three members (two brothers and one sister) can also jointly execute the release deeds or gift deeds in favour of the desired legal heir(s).
It is advisable to speak to your attorney and draft a suitable release deed, and calculate the stamp duty and transaction costs accordingly.