A gift deed is the instrument by which a person transfers ownership of property to another without consideration. In West Bengal a gift of immovable property must be in writing, signed by the donor, attested, and registered under the Registration Act 1908 — a gift of land or a flat that is not registered does not transfer title. This guide sets out who may gift to whom, what the deed must contain, the stamp duty position, and when a gift can be revoked.
Who can gift to whom
Section 122 of the Transfer of Property Act 1882 defines a gift as a transfer of certain existing movable or immovable property made voluntarily and without consideration by one living person to another. The donor must be competent to transfer, and the donee must be a person who exists at the time. A gift to a person who does not yet exist is void, except in the cases the Act permits, such as a transfer to an unborn person subject to the rules on transfer for the benefit of unborn persons. A gift between spouses, parents and children, siblings, or to any relative is common, and there is no bar on gifting to a non-relative.
Gift versus will
- A gift takes effect immediately and transfers title on registration; a will takes effect only on the death of the testator.
- A gift is irrevocable once validly made; a will can be changed any number of times during life.
- A gift deed requires stamp duty and registration; a will needs neither to be valid, though probate may be sought.
- A gifted property belongs to the donee during the donors lifetime; a willed property passes only at death.
What the gift deed must contain
- Parties. Names, parentage and addresses of the donor and donee, and the relationship.
- Recitals. A statement that the transfer is voluntary and without consideration.
- Property description. The full schedule — plot number, khatian, mauza, area, and the deed by which the donor acquired it.
- Possession. A statement that possession has been handed over or that the donee is already in possession.
- Acceptance. The donee must accept the gift; the deed should record acceptance, so the donee signs as well.
- Encumbrances. A declaration of existing mortgages, liens or pending litigation.
- Reservation. Any right of residence or a life interest reserved by the donor.
Registration, acceptance and revocation
Section 123 of the Transfer of Property Act 1882 requires a gift of immovable property to be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. A gift that is not registered does not pass title; it is void as a transfer. The donees acceptance, if signified after the donors death, must be given within a reasonable time and while the donor is alive, otherwise the gift cannot operate. Under Section 126 a gift may be revoked on the grounds the Act allows, such as a condition of revocation agreed to in the deed, or where the gift was obtained by fraud, misrepresentation, coercion or undue influence — but not merely because the donor later changed their mind.
Documents and annexures to attach
- Proof of the donors title — the registered deed or mutation record.
- Current khatian and land record, or the municipal records for a flat.
- Identity and address proof of donor and donee.
- Two witnesses with signatures and addresses.
- Tax receipt and no-dues certificate where the property is assessed.
Common mistakes
- Not registering the gift and assuming the paper transfers ownership.
- Writing a clause that reserves wide powers of revocation, which may defeat the gift.
- Failing to record the donees acceptance.
- Giving an incomplete property description, which the registry will reject.
- Using a will format for what is meant to transfer property during life, or the reverse.
FAQs
Is a gift deed valid without registration?
No. Under Section 123 of the Transfer of Property Act 1882 a gift of immovable property is valid only if made by a registered instrument signed by the donor and attested by two witnesses. An unregistered gift does not transfer title.
What is the stamp duty on a gift deed in West Bengal?
Stamp duty and registration fee are charged as per the West Bengal schedule of the Indian Stamp Act and vary with the property and the transaction. Because the figure is not fixed, it is computed from the schedule at the time of execution. Gifts to certain close relatives may attract a concession, which the drafting must reflect accurately.
Can I cancel a gift deed after execution?
A completed, registered gift is generally irrevocable. It can be revoked only on grounds the law allows, such as a reserved condition, or fraud, coercion or undue influence, and such a challenge is made through the appropriate civil proceeding.
Can I gift property to a minor?
Yes, a minor can be a donee, and a natural or appointed guardian accepts on the minors behalf. The gift is then held for the minors benefit, and the property cannot ordinarily be sold during minority without court sanction.
FileX Advocates & Legal Consultants, Kolkata, drafts, stamps and registers gift deeds for properties across West Bengal and appears before the Calcutta High Court, the City Civil and Sessions courts and the registration and tribunal forums. Call +91 7439811422 or WhatsApp us for a free first consultation. Read more about property registration and our gift and registration formats. Related: property law services and contact the firm.