A gift of immovable property must be registered and attested by at least two witnesses, whatever it is worth — and it must be accepted while the donor is alive, which is the element most homemade deeds forget. Once validly made it cannot be taken back because the donor changed their mind. But there is one important exception that protects parents, and most families have never heard of it.
"A 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." Section 122 — "gift" defined
Source: The Transfer of Property Act, 1882 — linked at the foot of this page.
Three elements, and all three must be present.
Voluntarily. The donor must intend to give, freely. A transfer procured by pressure, by taking advantage of dependence, or from somebody who did not understand what they were signing is open to challenge on that ground alone — and challenges of this kind are common where an elderly parent signs in favour of one child.
Without consideration. Nothing is paid or promised in return. The moment money moves, it stops being a gift and becomes a sale, with a different stamp duty and a different tax treatment. A "gift" recorded at a nominal price is not a gift.
Existing property. You can gift what you own now. You cannot gift property you expect to acquire later — a share you may inherit one day is not yours to give today.
And then the fourth thing, which the section adds and which is treated as an afterthought far too often: it must be accepted.
Section 122 requires that acceptance be made "during the lifetime of the donor and while the donor is still capable of giving". That is not a formality. It is a condition of the gift taking effect at all.
The situation we are asked about most often runs like this. A parent executes and registers a gift deed in favour of a child who is abroad, or estranged, or simply not told. Nobody signs on the donee's side. The parent dies. The family then discovers that whether the gift ever took effect is an open question, and the answer will be decided by evidence years after the only person who could have settled it has gone.
It is entirely avoidable. The deed should record acceptance expressly, the donee should sign it, and where possible there should be something else that shows acceptance — the donee attending the registration, taking possession, paying the tax afterwards, applying for mutation.
For the purpose of making a gift of immovable property, the transfer must be "effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses". Section 123, Transfer of Property Act, 1882
For movable property, the transfer may be made either by a registered instrument signed as aforesaid, or by delivery of the property.
Source: The Transfer of Property Act, 1882.
Note what is not in that section: a value threshold. For a sale, Section 54 speaks of tangible immovable property "of the value of one hundred rupees and upwards". For a gift of immovable property, there is no such qualification at all. Every gift of immovable property must be registered, whatever the property is worth.
An unregistered gift deed of immovable property therefore transfers nothing. It is not a weaker gift. It is not a gift at all. People occasionally produce one, decades old, handwritten and witnessed, believing it settled the matter — and it did not.
Two attesting witnesses are required, and they should be people who are traceable later and who are not themselves taking anything under the deed.
Tell us the state, the property and the relationship. We will tell you the stamp duty that actually applies — many states charge a concessional rate for close relatives — and what the deed needs to say. No charge for that answer.
Order Now — Free WhatsApp usGenerally, no — and this is where a great deal of family unhappiness begins, because people treat a gift deed as reversible and it is not.
A gift may be suspended or revoked where the donor and donee agreed that it should be, on the happening of a specified event not depending on the will of the donor.
It may also be rescinded in the circumstances in which a contract may be rescinded — fraud, misrepresentation, undue influence.
A gift which is revocable at the mere will of the donor is void.
Source: Section 126, The Transfer of Property Act, 1882.
Read the last line carefully, because it produces a result that surprises people. You cannot make a gift and reserve the right to change your mind. If you try — if the deed says the donor may revoke it at will — you have not created a revocable gift. You have created a void one.
What you can do is agree, at the time, that the gift will be revoked on a specified event that does not depend on your own will. That is a genuine condition and it is enforceable. But it has to be agreed by both sides and written into the deed at the outset. It cannot be added afterwards, and a change of heart is not an event.
Having said all that about irrevocability, there is one exception, and it matters enormously to the families who need it.
The provision that lets a neglected parent go back to the Tribunal
Where a senior citizen has transferred property — by gift or otherwise — subject to the condition that the transferee will provide the basic amenities and basic physical needs of the transferor, and the transferee refuses or fails to do so, the transfer shall be deemed to have been made
"by fraud or coercion or under undue influence"and shall, at the option of the transferor, be declared void by the Maintenance Tribunal.
The section also provides that where a senior citizen has a right to receive maintenance out of an estate, and that estate is transferred, the right may be enforced against the transferee if the transferee had notice of the right, or if the transfer is gratuitous — though not against a transferee for consideration and without notice.
Where a senior citizen is incapable of enforcing these rights themselves, a recognised organisation may act on their behalf.
Source: Section 23, Maintenance and Welfare of Parents and Senior Citizens Act, 2007 — linked at the foot of this page.
This is the section that answers the question we are asked more than any other in this area: "My parents gave the house to my brother and now he will not look after them. Is there anything that can be done?" There may well be. It is not a civil suit taking a decade — it is an application to the Maintenance Tribunal.
Two practical points, one for each side of the transaction:
Where the donor is a senior citizen we draft the deed so the maintenance condition is recorded expressly — which protects the parent and, frankly, protects the child from an argument later about what was agreed. Drafting from ₹900.
Order Now — ₹900 +91 98913 43962A gift can be a tax event for the person receiving it. The rule has two halves, and the second half catches families out every year.
A gift from a "relative" is exempt, however large. There is no ceiling. A father gifting a flat to a son, a brother to a sister, a grandparent to a grandchild — none of that is taxable in the recipient's hands.
A gift from anybody else is taxable in the recipient's hands where the aggregate value received in the financial year exceeds ₹50,000.
So everything turns on who is a relative. The statutory list is narrower than most families' idea of one:
Look at the asymmetry in that pair. Your uncle — your parent's brother — is a relative, so a gift from him is exempt. But you are his nephew, and a nephew is not on the list, so the same gift travelling the other way is not exempt. The relationship is not reciprocal for this purpose, which is exactly the sort of thing nobody checks until a notice arrives.
Stamp duty on a gift deed is a state charge, and this is one of the areas where the difference between states is largest. Many states charge a concessional rate where the gift is to a specified close relative, and some charge a nominal amount. Others charge the same as on a sale.
Because the categories and the rates differ, the only reliable answer is for the state where the property is. Two things are generally true everywhere:
We quote the duty as a separate line before drafting, because it is a government charge and because in a family gift it is very often the largest part of the cost.
Families arrive asking for a gift deed when what they need is one of the other three. The differences are worth ten minutes before a decision that cannot be reversed.
| Gift deed | Will | Sale deed | Relinquishment | |
|---|---|---|---|---|
| Takes effect | Now | On death | Now | Now |
| Consideration | None | — | Price paid | Usually none |
| Can you change your mind? | No | Yes, any time | No | No |
| Registration | Compulsory for immovable property | Optional | Compulsory above ₹100 | Compulsory |
| Typical use | Transfer to family now | Pass on after death, keep control meanwhile | Arm's length transfer for a price | A co-owner giving up their share to other co-owners |
| Watch out for | Irreversible; acceptance required; senior citizen condition | Execution formalities; residuary clause | Title check; TDS; circle rate | Only works between existing co-owners |
Tell us who owns what, who you want it to go to, and when. We will tell you which document does that — and if it is the cheaper one, that is what we will say.
Order Now — Free Read: will drafting Relinquishment deedFull names, parentage, age, address, PAN and identity particulars of both, and the relationship between them — which matters for the stamp duty concession and for the tax position.
The deed or succession by which the donor acquired the property, with registration particulars. A gift deed with thin recitals makes the donee's next transaction harder than it needed to be.
Survey or plot number, municipal number, floor, built-up and carpet area, boundaries on all four sides, and the undivided share in the land where it is a flat.
Stated expressly, together with the donor's love and affection or other reason for making it. Any hint of consideration turns it into something else.
Recorded in the deed and signed by the donee. Where the donee is a minor, by the natural guardian, stating the capacity.
Whether possession passes now or is deferred, and on what terms. Delivery of possession is not essential to the validity of a gift of immovable property, but silence invites argument about what was intended.
Any condition must be agreed by both sides and written in at the time — including, where the donor is a senior citizen, the maintenance condition discussed above. A condition cannot be added afterwards.
Whether the property is free of charge, and who bears the outgoings up to and after the date of the gift.
At least two witnesses, with full names, addresses and identity particulars — and not beneficiaries under the deed.
Perfectly possible and quite common — grandparents to grandchildren, parents setting something aside. Three things change.
Acceptance is by the guardian. A minor cannot accept for themselves, so a natural guardian accepts on their behalf, and the deed should record who accepted and in what capacity.
The guardian manages, but does not own. Until the minor attains majority the property is managed by the guardian for the minor's benefit. It is not the guardian's property and cannot be dealt with as though it were. A sale during minority generally needs the court's permission.
A gift with a burden needs thought. Where the property carries an obligation — a mortgage, a maintenance liability, a tenancy with duties attached — accepting on a minor's behalf raises questions that are better answered before the deed than after.
Two things people often want, and both are achievable if they are set up correctly at the outset.
As covered above, a gift may be made subject to a condition agreed by both parties, to be suspended or revoked on the happening of a specified event that does not depend on the donor's will. The maintenance condition for a senior citizen donor is the most useful example. What cannot be done is reserving a power to revoke at will — that makes the gift void.
A donor who wants to give the property now but continue living in it for life can reserve a life interest, and doing so does not by itself invalidate the gift. It must be written into the deed — an understanding that "of course I will go on living here" is not a reserved right, and the donee who inherits the argument is the one who will test it.
Where a life interest is reserved, the deed should also deal with who pays the outgoings during that period, who maintains the property, and whether the donee may sell subject to the life interest.
| What | How long | What it costs |
|---|---|---|
| Gift deed drafted to the family situation | 1 – 2 days | From ₹900 for the drafting |
| Stamp duty | Same day | State rate on the government valuation — often concessional for close relatives, quoted at actuals |
| Registration fee | On the appointment | State rate, at actuals |
| Registered deed released | Usually a few days after registration | — |
| Mutation in municipal and revenue records | Weeks, depending on the office | Quoted separately |
In a family gift the stamp duty is very often larger than everything else put together, which is exactly why the concessional rate for close relatives is worth establishing before you commit. We check it for your state and tell you the figure first.
Drafting from ₹900, usually 1 – 2 days, with the stamp duty for your state checked first. Free to order, free to ask — and if a will would suit you better, we will say so.
Order Now — ₹900 +91 98913 43962 WhatsAppTell us who is giving, to whom, and when you want it to take effect. If the honest answer is "after I am gone", we will tell you that a will is the document — and it usually costs you less. Nothing payable in advance.
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