In India, the main ways to transfer immovable property are through Wills and Gift Deeds. Although both are used to transfer ownership, they operate under very different legal systems and timelines. A Will, which is governed by the Indian Succession Act of 1925, only comes into effect after the person who made it (the testator) passes away and can be changed or cancelled at any point while they are still alive. On the other hand, a Gift Deed, which follows Section 122 of the Transfer of Property Act from 1882, leads to an immediate and permanent transfer of ownership as soon as it is accepted and registered. Recently, there has been an increase in property disputes, especially those involving older donors or contested inheritances.
What is a Will?
A Will is a legal document made by a person referred to as the testator to express their intentions regarding how their property and possessions should be distributed after their death.
- It allows the testator to specify who will receive which assets, appoint guardians for minor children (if any), and name an executor who will carry out the terms of the Will.
- A Will only come into effect after the testator’s death. Until then, the document does not have any legal force, and the testator retains complete ownership and control over their assets.
- It serves as an important tool for ensuring that property is transferred according to the testator’s wishes, thereby reducing potential family disputes or legal challenges after their passing.
Legal Characteristics of a Will
- Takes Effect Only After Death
- A Will has no legal operation during the testator's lifetime. The person remains the absolute owner of their assets until death.
- This feature distinguishes a Will from other instruments like gift deeds, where the transfer of ownership takes place during the lifetime of the donor.
- Revocable at Any Time Before Death
- One of the core features of a Will is that it is revocable. The testator is free to change, update, or completely rewrite the Will multiple times during their lifetime.
- If a later Will is made properly, it will generally supersede the earlier one unless the later document states otherwise. This provides flexibility to accommodate changes in family circumstances or asset ownership.
- Registration is Not Mandatory
- Under Indian law, specifically the Registration Act, 1908, the registration of a Will is not compulsory.
- However, if a Will is registered, it becomes more difficult to challenge, as the registration process involves verification by a sub-registrar and provides an added level of credibility.
- A registered Will is stored in official records and can be accessed by legal heirs after the testator's death, reducing the risk of loss or tampering.
Who Can Make a Will?
- According to the Indian Succession Act, 1925, the following persons are legally capable of making a Will:
- Any adult (i.e., a person who has completed 18 years of age).
- The person must be of sound mind, meaning they should have the mental capacity to understand the nature of the act, their property, and who their legal heirs are.
- Persons with physical disabilities such as those who are blind, deaf, or mute—are still competent to make a Will provided they understand the contents and consequences of what they are doing.
- A person suffering from temporary illness or intoxication at the time of making the Will may not be considered mentally fit. The Will can only be valid if the testator was in a clear and conscious mental state.
- A person with intermittent mental illness (like bipolar disorder or schizophrenia) can make a valid Will if it is executed during a lucid interval, a period when they are mentally stable.
Essentials of a Valid Will
For a Will to be legally valid and enforceable, it must meet the following basic requirements:
- Voluntary Execution: The Will must be made out of the testator's free will, without any form of coercion, pressure, or manipulation.
- Clear Intention: The document must clearly reflect the intention of the testator to dispose of their assets after death.
- Proper Signature: The testator must sign or affix a mark on the Will, indicating their approval of its contents.
- Attestation by Witnesses: As per law, the Will must be attested by at least two witnesses, who should have seen the testator sign the document. These witnesses should also sign the Will in the presence of the testator.
- Date and Place: While not mandatory, mentioning the date and place of execution helps avoid confusion, especially when multiple versions of the Will exist.
Landmark cases that shaped the concepts -
- Bharpur Singh v. Shamsher Singh (2009): The Supreme Court held that in cases where suspicious circumstances exist surrounding the execution of a Will, the burden of proof on the propounder becomes more stringent. The person presenting the Will must produce clear and convincing evidence to establish that the Will was executed voluntarily, by a person of sound mind, and without any undue influence or coercion.
- Jaswant Kaur v. Amrit Kaur (1977): In this case, the Court emphasized that proving the testator's mental soundness and the presence of their signature is not sufficient when suspicious circumstances are alleged. The propounder must provide affirmative and satisfactory evidence to dispel any doubts about the Will’s genuineness and proper execution.
- Pentakota Satyanarayana v. Pentakota Seetharatnam (2005): The Court clarified that the mere presence of beneficiaries at the time of drafting or executing the Will does not automatically imply undue influence. Such allegations must be supported by specific and credible evidence to be taken into account.
What is Probate and When is it Required?
- Probate is a legal process by which a court certifies that the Will is valid and authorizes the executor to carry out its instructions.
- Under Section 2(f) of the Indian Succession Act, probate is defined as an official copy of the Will, issued by a competent court, with a seal attached.
- Sections 213 and 57 of the same Act specify that probate is mandatory in the following cases:
If the Will relates to immovable property situated in the original civil jurisdiction of the High Courts of Bombay, Madras, or Calcutta.
In other parts of India, probate is not legally required, but obtaining it is considered a prudent legal step, especially if the Will is likely to be disputed or involves substantial assets.
What is a Gift Deed?
- A Gift Deed is a legal instrument by which a person voluntarily transfers ownership of their movable or immovable property to another person without receiving any monetary consideration in return.
- The person giving the gift is referred to as the donor, and the person receiving it is the donee.
- The gift must be made out of free will, without any pressure, fraud, or undue influence, and must be accepted by the donee while the donor is still alive.
Essentials of a Valid Gift
For a gift to be valid under Indian law, particularly under the Transfer of Property Act, 1882, the following requirements must be satisfied:
- Capacity of the Donor
- The Donor must hold a legally valid title over the property.
- The donor must be competent to contract, i.e., they must be of sound mind and not a minor.
- A person who is mentally incapacitated or underage does not have the legal ability to execute a valid gift.
- Acceptance by the Donee
- The gift must be accepted by the donee, either expressly or impliedly (e.g., by taking possession of the property).
- Crucially, such acceptance must occur during the lifetime of the donor and while the donor is still capable of giving.
- If the donee fails to accept the gift while the donor is alive, the gift becomes void.
- Voluntariness
- A valid gift must be made voluntarily, without any form of coercion, fraud, misrepresentation, or undue influence.
- If the donor is found to have been under pressure or manipulation, the gift can be declared legally invalid by a competent authority.
What kind of property can you give away in a gift deed?
Gift of Immovable Property
- When the property being gifted is immovable (e.g., land, house, flat), the law imposes stricter formalities:
- As per Section 123 of the Transfer of Property Act, 1882, a gift of immovable property must be made through a written document called a Gift Deed.
- This deed must be:
- Drafted on appropriate stamp paper (as per state-specific stamp duty rules),
- Signed by the donor,
- Attested by at least two witnesses, and
- Registered at the office of the sub-registrar within whose jurisdiction the property is located.
- Registration is mandatory, as per the Registration Act, 1908. Without registration, the gift of immovable property is not legally valid, and title does not pass to the donee.
Gift of Movable Property
- In contrast to immovable property, the gifting of movable property (such as jewelry, furniture, or money) is governed by a more flexible process:
- A written deed is not mandatory.
- The essential elements are voluntary delivery of the item and acceptance by the donee.
- Delivery can be physical or symbolic, depending on the nature of the item.
- There must be no monetary consideration involved; otherwise, it may be treated as a sale.
Irrevocability of Gifts
- Once a gift is lawfully executed and accepted, it generally becomes irrevocable.
- A donor cannot cancel or revoke the gift unilaterally on a mere change of mind or due to regret.
Exceptions under the Law:
- Conditional Gifts (Section 126, Transfer of Property Act)
- A gift may be made subject to specified conditions agreed upon by both donor and donee.
- If the donee fails to fulfill those conditions, the donor has the legal right to revoke the gift.
- However, the condition must not be illegal or impossible to perform, and it must be clearly mentioned in the deed.
- Relief under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007
- If a senior citizen donates property to a family member or relative in expectation of care and maintenance, and the donee fails to provide such support,
- A maintenance tribunal may direct the cancellation of the Gift Deed under Section 23 of the 2007 Act.
- This provision offers legal protection to elderly persons who may have transferred their assets on compassionate grounds but are later neglected or mistreated.
The Key Legal Differences Between a Gift Deed and a Will comes into play in deciding how to transfer property in India, it's important to understand the legal effects of both a Gift Deed and a Will. While both are used to pass on ownership, they work very differently in terms of timing, control, revocability, and legal protections.
Gift Deed deals with an Immediate and Irrevocable Transfer
- A Gift Deed is used when a person wants to give away their property during their lifetime, without receiving any money in return.
- Once the property is accepted by the recipient and the deed is registered, the transfer becomes final. The original owner no longer has control over the property.
- Registration is compulsory for immovable property, and it ensures the legal validity of the transaction.
- A Gift Deed cannot usually be cancelled, except when there is clear evidence of fraud, coercion, or when the gift was made with a condition that has not been fulfilled.
Will: Future Intention, Revocable Until Death
- A Will is a legal document that describes how a person wants their property to be divided after their death.
- It does not create any rights during the lifetime of the person making the Will.
- A Will can be changed or cancelled at any time before death.
- Because Wills take effect only after death, courts examine them carefully—especially if there are doubts about whether the person was in a fit mental state or acted under pressure.
- Even a registered Will is not automatically valid. Courts have held that if there are inconsistencies, such as unclear health conditions of the person or suspicious circumstances around its execution, the Will can be rejected.
- To prove a Will is valid, the person presenting it must meet the legal requirements under succession and evidence laws, and must also remove any doubts raised by the circumstances.
