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Article Published in the Express Magazine Dated
June 09, 2002
General Attorney : Rajiv K. Luthra
My father-in-law and brother-in-law owned a
four-storied building in Gandhidham. On November
7, 2000, they executed a gift deed in presence of
a notary in which the entire flat on the second
floor was gifted to me. In the earthquake on
January 26, 2001, the building was completely
damaged. The Gujarat Government's rehabilitation
package includes compensation for damaged houses.
When I submitted my case to the concerned
authorities, my case was rejected on the grounds
of an unregistered gift deed. How can I lodge my
case of compensation?
Madhu S. Khiani, Gandhidham
The Government of Gujarat has set up several
rehabilitation packages for the earthquake
affected. Some of these packages are exclusively
for owners of houses or flats, while others also
allow assistance to the actual possessor of the
property. Apparently, you have applied for aid
granted only to the owner of a house or flat.
Section 123 of the Transfer of Property Act, 1882,
stipulates that a transfer of a gift of immovable
property must be effected by a registered
instrument signed by or on behalf of the donor and
attested by at least two witnesses. Besides, a
gift deed also presupposes payment of stamp duty,
which appears to have also not been paid in the
present case, thereby violating the provisions of
the Indian Stamp Act 1899.
In order to have it registered, the gift deed
needs to be presented to the Sub-Registrar, within
whose sub-district the building is situated,
within four months from the date of its execution.
An unregistered gift of immovable property is bad
in law and cannot pass any title to the donee.
Consequently you did not acquire a legal title.
Under these circumstances you may not be entitled
to compensation under a scheme which provides for
compensation only to the owner of destroyed
property. Alternatively, you may examine the
possibility of applying for compensation granted
to the possessor of property.
My mother owned two properties at Chennai. She
expired in January 2001, leaving an unregistered
will in my sister’s name. A legal heir certificate
was issued by the Collector, Indore, which clearly
names my sisters as legal heirs. Can the
properties be transferred in my sister’s name in
the municipal records based on the unregistered
will or the legal heir certificate from the
Collector, Indore? Can my sisters sell the
properties on this basis?
M.K. Vedi, Ahmedabad
REGISTRATION of a will is not a legal necessity
and there is no legal impediment to an
unregistered will being accepted. However, under
Section 213 of the Indian Succession Act, 1925, no
right as legatee can be established in any court
of justice unless a court of competent
jurisdiction in India has granted probate of the
will or letter of administration under which the
right is claimed. Probate of a will when granted
establishes the will from the death of the
testator and renders valid all intermediate acts
of the executor as such. Although a probate is not
mandatory in all states of India, since it relates
to immovable property situated in Chennai, it
requires to be probated. According to Section 222
of the Act, a probate shall only be granted to an
executor appointed by the will.
From your query it appears that there is no such
appointment expressed in the will. However, the
appointment may be done also by necessary
implication in the will. In cases where there is
no executor appointed in a will, a universal or
residuary legatee may be admitted to prove the
will and the letters of administration with the
will annexed may be granted to him of the whole
estate, or of so much thereof as may be
unadministered. It is therefore recommended that
your sisters apply for a probate or letter of
administration and proceed therefrom.
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