Gift to son by father
My father owned a 1 bhk flat which is registered jointly in my father's and mother's name. Now my mother is no more and my father wishes to gift the house to me. I also have two younger brothers. Now my question is : 1) In the absence of my mother can my father gift the house to me. 2) Can the property be registered jointly with my wife's name. 3) Do I require NOC from my brothers. 4) What is the process of transferring the property.
The answer to your 1st question would be – in order to transfer a title of the property in someone’s name it is necessary that all the co-owners jointly transfer title. Suppose if one of the owners is transferring the title then it should contain a no-objection certificate from the other co-owners. In your case unfortunately the other co-owner is no more, so no need of such a certificate. Meaning thereby, as of today, your father is the whole and sole owner of the said property. And the title of the property holds in his name itself. Therefore, empowering him and only him alone – to transfer the property as per his will.
As per your 3rd query – Yes, a property can definitely be registered in the name of two joint co-owners.
As far as a gift deed is concerned, it is made and executed on a stamp paper as a part of its registration. The procedure of such a transfer is as follows with regard to your 4th question :-
Stages of a gift deed are as follows :-
- Making of a gift-deed – it is essentially an agreement between a donor and the acceptor. An agreement without any consideration.
- As per Section 123 of the Transfer of Property Act, a gift of immovable property should be registered. This registration is to be followed by an attestation of two witnesses. Registration process involves paying the respective stamp duty. Stamp duty varies from state to state as it is a part of the local laws.
- Gift deed is completed on the acceptance of the gift by the done as against the donor. However, for a gift deed to stand valid – it is mandatory that the done receives the gift during the lifetime of the donor, else it stands void.
Registration of a gift deed is mandatory as per Section 17 of the Registration Act, 1908 and section 123 of the Transfer of Property Act. Doing otherwise, renders the transaction invalid.
There is absolutely no NOC required from your brothers. They have no role to play in this. How can they object on the transfer which has nothing to do with them. They have no legal claim over the said property. Or for that matter you also don’t have a claim until and unless your father write the property in your name. Had it been a family partition sort of property then their right might have accrued.
Apart from a Gift deed, the property can also change hands through a Will. The property can very well find place in your father’s Will along with your name in it.
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