This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.
Introduction
A gift deed is governed by the Transfer of Property Act, 1882 (Sections 122–126). For immovable property, a gift deed must be in writing, attested by two witnesses, and compulsorily registered — an unregistered gift deed for immovable property is void, not merely voidable. This article explains the validity requirements, stamp duty and registration in Uttar Pradesh, the rules on conditional gifts, and the limited grounds on which a registered gift may be revoked.
What Is a Gift Under Indian Law?
Section 122 of the Transfer of Property Act, 1882 defines a gift as the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another called the donee, and accepted by or on behalf of the donee.
The key elements are:
- Existing property — the property must exist at the time of the gift; a gift of future property is void.
- Voluntary transfer — the donor must act of their own free will; a transfer under coercion, undue influence, or fraud is voidable.
- Without consideration — if any payment is involved (even nominal), the transaction is a sale or exchange, not a gift.
- Acceptance by the donee — the gift must be accepted by the donee during the lifetime of the donor. If the donee dies before acceptance, the gift lapses.
Essential Legal Requirements
1. Acceptance During Donor’s Lifetime
Section 122 TPA requires that acceptance must be made during the donor’s lifetime and while the donor is still capable of giving. This requirement distinguishes a gift from a testamentary bequest (will), which takes effect only after death.
2. Registered Instrument — Immovable Property
For a gift of immovable property, Section 123 TPA makes registration compulsory. The gift deed must be:
- In writing (a verbal gift of immovable property is not valid).
- Signed by or on behalf of the donor.
- Attested by at least two witnesses.
- Registered as required by law.
An unregistered gift deed for immovable property is void — it cannot convey title, and no court will treat the donee as the owner on the basis of an unregistered deed alone. This is an absolute rule; there are no exceptions.
3. Delivery of Possession — Movable Property
For a gift of movable property (such as jewellery, a vehicle, or shares), Section 123 TPA provides an alternative to a written deed: the gift may be effected by delivery of possession. However, if a written deed is executed for movable property, it must be attested but does not require registration.
Stamp Duty and Registration in Uttar Pradesh
Stamp Duty
In Uttar Pradesh, the Stamp Act, 1899 (as amended) and its schedules prescribe stamp duty on gift deeds. The applicable rate varies based on:
- Whether the property is movable or immovable.
- The relationship between the donor and the donee (immediate family members — spouse, children, parents, siblings — attract concessional rates in many states; confirm the current UP rate at the Sub-Registrar’s office or IGRSUP portal).
- The declared value of the property (market value or circle rate, whichever is higher).
Under-stamped instruments are inadmissible in evidence until deficiency stamp duty and penalty (up to ten times the shortfall) are paid.
Registration Fees
In addition to stamp duty, registration fees are payable at the Sub-Registrar of Assurances in the district where the property is located. The applicable fee schedule is available at the UP Registration and Stamp Department portal: https://igrsup.gov.in.
Procedure for Registration
- Draft the gift deed on non-judicial stamp paper of the required denomination, or through the IGRSUP e-stamping portal.
- The donor and donee (or their duly authorised agents) must appear before the Sub-Registrar.
- Two attesting witnesses must sign the deed.
- Submit the deed along with identity proof, address proof, and property documents.
- Pay registration fees at the counter.
- The deed is scanned, registered, and a certified copy is returned.
After registration, the donee should apply for mutation of the property in the revenue records (khasra/khatauni) at the local Lekhpal/Tehsil office to reflect the change of ownership.
Conditional Gifts
A gift may be made subject to conditions. Section 126 TPA permits two types of conditional gifts:
1. Gift with a Condition Subsequent
The donor may provide that the gift shall be revoked on the occurrence or non-occurrence of a specified event. For example: “I gift this property to my daughter, but the gift shall be revoked if she does not survive me by thirty days.” Such a condition is valid if it does not impose a condition that makes the contract void under the Indian Contract Act, 1872.
2. Gift Coupled with a Burden
Where a gift is made subject to a burden (e.g., “I gift this house to my son on condition that he maintains me and my wife for the rest of our lives”), the donee must accept the burden along with the benefit, or decline both. The donee cannot accept the benefit (the house) and reject the burden (maintenance obligation).
Revocation of a Gift
General Rule — Gifts Are Irrevocable
Once a gift of immovable property has been duly executed and registered, and possession has been given, it is generally irrevocable. The donor cannot take back the property simply because they have changed their mind.
When Revocation Is Permitted (Section 126 TPA)
A gift may be revoked on one of the following grounds under Section 126 TPA:
- Mutual agreement — if the donor and donee agree (by contract) at the time of the gift that the gift may be revoked in certain circumstances, and those circumstances occur.
- Non-fulfilment of a condition imposed by the donor — if the donee has failed to fulfil a condition on which the gift was made.
- Fraud, misrepresentation, or undue influence — if the donor’s consent to the gift was obtained by fraud or undue influence, the gift is voidable at the donor’s option. The donor may file a civil suit to have the gift deed declared void.
- Incompetence of donor — a gift made by a person of unsound mind, a minor, or a person under legal disability may be challenged by the donor or their legal representatives.
A gift cannot be revoked merely because:
- The donor’s financial circumstances have changed.
- The donor is dissatisfied with the donee’s conduct (unless a specific condition to this effect was inserted in the deed and the donee has breached it).
- A subsequent will purports to cancel the gift (a gift, being an executed transfer, takes precedence over a will).
Limitation Period for Revocation Suits
A suit to revoke a gift (on grounds of fraud or undue influence) must be filed within three years of the date the plaintiff discovered the fraud or undue influence, under Article 59 of the Limitation Act, 1963.
Gift Deed vs Will — Key Differences
| Feature | Gift Deed | Will |
|---|---|---|
| When it takes effect | Immediately during donor’s lifetime | Only after death of testator |
| Registration | Compulsory for immovable property | Not compulsory (but advisable) |
| Revocability | Generally irrevocable once registered | Freely revocable during testator’s lifetime |
| Stamp duty | Applicable | Usually nominal |
| Transfer tax implications | Applicable | May attract succession / inheritance tax in future |
| Witness requirement | Two attesting witnesses | Two witnesses (must not be legatees) |
Gift by a Hindu Undivided Family (HUF)
A Karta (managing member) of an HUF may make reasonable gifts out of HUF property for pious purposes and for the necessities of dependants, but cannot alienate or gift away coparcenary (joint family) property without the consent of all coparceners. A gift of HUF immovable property without such consent is voidable at the instance of the non-consenting coparceners.
Key Statutory Provisions
| Provision | Subject |
|---|---|
| Section 122, Transfer of Property Act 1882 | Definition of gift |
| Section 123, Transfer of Property Act 1882 | How gifts are made — writing and registration |
| Section 126, Transfer of Property Act 1882 | When gifts may be revoked |
| Section 17, Registration Act 1908 | Documents requiring compulsory registration (includes gift deeds for immovable property) |
| Article 59, Limitation Act 1963 | Limitation for suit to set aside a fraudulent transaction |
Important Points to Remember
- A gift of immovable property without a registered deed is void — not merely voidable. No court will recognise the donee’s title.
- Stamp duty must be paid at the market value or circle rate — whichever is higher. Presenting an artificially low valuation can attract penalty.
- Acceptance of the gift by the donee must happen during the donor’s lifetime; a gift lapses if the donee dies before accepting.
- Conditional gifts are valid; ensure the condition is clearly stated in the deed and does not violate contract law (no impossible or illegal conditions).
- Once registered, a gift cannot be revoked by the donor’s later will; the gift has priority.
- If a donor was under undue influence or fraud when executing a gift deed, a suit to revoke it must be filed within three years of discovering the fraud.
Useful Resources
- UP Stamp and Registration Department — IGRSUP — stamp duty calculator, e-stamping, registration
- Indian Kanoon — Transfer of Property Act Case Law
- Registration Act 1908 (Legislative.gov.in)
- National Land Records Modernisation Programme (DILRMP) — digitised land records
Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.