INTRODUCTION
Gift deeds are becoming a major sensational issue at this point, and older people face harsh situations. India is a country where the elders stock their properties for the betterment of their upcoming generations, providing them with financial security. It has been observed that the provisions regarding the gift deeds performed by the elderly and the unchangeable nature of these have proven to be incautious to their interests. Sometimes the deeds are transferred in favour of their children or caretaker, but in return, it backlashes them by getting neglected once the property is transferred.
The Supreme Court has lately given a major judgement that is proven to be beneficial for the elders. According to it, if their children do not take care of them and leave them alone after the transfer of the property and other goods as a part of showing gratitude and trust towards their child. The property hence transferred will be declared void. The court even assumes that this act secures the rights given to the elders to counter the harsh challenges they are facing.
What are gift deeds?
Gift deeds are executed in the office of the sub registrar’s office and should be a registered gift. [1] These are executed when a person transfers their property or goods voluntarily with full knowledge to someone else. The transfer can be in any form of relation either blood relation, or affiliated relation in the form of a gift.
The essential element is the acceptance of the property. The process should be taken between the Donor (The person who does the transfer) and the Donee (The person who receives the property) in front of two witnesses.[2] The gift deed should be recorded in the court as a gift agreement; failing to do so will lead to the cancellation of the deed. Giving a gift is the act of offering something to someone, whether immovable or not, without expecting anything in return.
Furthermore, the Kerala High Court held in a case that mere mention of the property delivered in a registered gift deed is sufficient to establish the acceptance.[3]
These gift deeds act as legal documents for the ownership of transferred properties from one person to another without any consideration.
Criticisms against gift deeds:
- There are several cases where these gift deeds are acquired or executed by fraud, coercion, and misrepresentation, or even sometimes under undue influence.
- The transfer of immovable property under the deed should be registered, which is procured due to affection without any consideration, before two witnesses, and hence it will be declared valid. Whereas for movable property registration for a gift deed is not compulsory.
Nature of gift deeds:
In Indian law the property transferred by way of gift is considered irrevocable, and the terms and conditions provided in it are unchangeable even after the execution is complete; the same cannot be challenged in any court. The person who transferred the property that is the donor cannot revoke such deed once it gets accepted by the donee. However, if both parties mutually agree to revoke it, then the same can happen. These deeds are a type of contract where the terms and conditions can be altered upon the demand of the other party, which are known as voidable contracts.
The Supreme Court observed the same situation in a case where it upheld the question of whether it can be revoked or not. Quotation of the judgement: “The moot question which arises for our consideration in this appeal is whether the registered gift deed was duly acted upon and accepted and is a valid document that continues to exist despite its revocation, as the donor had not reserved the right to revoke the same.” The court stated that, gift deeds made validly can be revoked or suspended under certain happenings, but as a general rule it cannot be revoked. If, more specifically, when there is no such right mentioned or reserved to act upon if something is misshapen, then the same cannot be revoked.[4]
The general rule for the gift deed is that it cannot be revoked until and unless there are some contingencies cited in it.
“When a gift can be canceled, suspended/ revoked:
The donee and the donor may agree that a gift will be suspended or revoked upon the occurrence of a specific event that is independent of the donor’s will; however, a gift that the parties agree is revocable in whole or in part at the donor’s sole discretion is void in whole or in part, as the case may be.
A gift can also be withdrawn in any of the situations (apart from lack of consideration or want) where it could be withdrawn as a contract. A gift cannot be withdrawn, unless specifically stated. Nothing in this provision will be interpreted as affecting transferees rights to consideration without prior notice.”[5]
But this law on revocation might violate parental rights because, if the gift deeds were executed for the purpose of providing basic amenities and support of the parent but the child fails to do so and entertains the deed in some other way. The sole need of that transfer gets disturbed.
In a case of the Bombay High Court, it upheld the Senior Citizens Maintenance Tribunal’s decision to revoke two gift deeds due to the action of the son. Where a mother gift deeds to her son for getting the basic needs, but the son denied her access to the house, so the court revoked the deed. The terms for taking care of the transferor do not need to be specifically stated in the deed.[6] It can be shown or mentioned in the tribunal that the transferee promised to look after the transferor. The gifts were given out of genuine love and affection for the son, which was the only possible reason for doing so. Inbuilt in such love and affection is the son’s responsibility to offer basic comforts and physical necessities to the widowed mother. The court highlighted that the “transfer of property as a gift can be declared void if the transfer was done by fraud, coercion, and undue influence. It is also subject to the condition that the transferee will provide basic amenities to the transferor (senior citizen). In this case, the transferee refused to do so”.[7] The term ‘maintenance’ in the Maintenance And Welfare Of Parents And Senior Citizens Act states that it is not just about providing money but rather it also includes other basic facilities such as food, clothes, houses, medical care, treatments, and residence.
As it has been mentioned above that in India it is very common to see where parents transfer their property due to their love and affection towards their child, which sometimes results in their loss only, so sometimes there may be a need to knock on the doors of the court to get everything back where it is needed.
However, it is generally difficult to revoke a deed until and unless there is reason provided that must pass the test of authentication as to how much it is true or not. There must be specific reasons concluded in the deed itself for the revocation. For example, if the donor retains the power to revoke the gift deed and regain the property, this is legally enforceable. Without such protections, withdrawing a registered gift deed might be difficult and may necessitate significant evidence of a breach of terms or abuse of trust.
Conclusion:
Even though the gift deeds can be revoked due to specific reasons and circumstances under the Indian law, providing them a solution to correct their error. It is advisable for parents to be clear and specifically highlight the terms and conditions before the transfer of the property, mentioning the responsibilities that will be coming thereof from the gift deed. This can be a beneficial step towards safeguarding their rights and ensuring they get the care and support that they should be receiving.
Author(s) Name: Aanchal Rathour (Vivekananda Institute of Professional Studies -TC, Pitampura)
Refrences
[1] Registration Act 1908, section 17(2).
[2] Transfer of Property Act 1882, section 123
[3] Manju Elsa Isac ,‘Donor’s Acknowledgement in Gift Deed of Property’s Delivery to Donee Is Sufficient Proof of Gift’s Acceptance: Kerala High Court’ (Live Law, 23 June 2024) <https://www.livelaw.in/high-court/kerala-high-court/donors-acknowledgement-in-gift-deed-of-propertys-delivery-to-donee-is-sufficient-proof-of-gifts-acceptance-kerala-high-court-261217> accessed 7 January 2025
[4] N.Thajudeen Vs. Tamil Nadu Khadi And Village Industries Board /October 24 2024/Supreme Court Of India/ Civil Appeal No. 6333 Of 2013
[5] Transfer Of Property Act 1882, Section 126
[6] Unknown/ Money Outlook. (2023) Can parents revoke gift deeds if children refuse to take care of them?, Outlook Retirement. Available at: https://retirement.outlookindia.com/plan/succession/can-parents-revoke-gift-deeds-if-children-refuse-to-take-care-of-them (Accessed: 07 January 2025).
[7] Maintenance And Welfare Of Parents And Senior Citizens Act 2007 / Section 23
