Your Q, His A: 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 the presence of a notary in which the entire flat on the second floor was gifted to me.

Madhu S. Khiani,
Gandhidham

The Gujarat Government has set up several rehabilitation packages for the earthquake affected. Some of these 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 the destroyed property. Alternatively, you may examine the possibility of applying for compensation granted to the possessor of property.

My mother owned two properties in Chennai. She died in 2001, leaving an unregistered will in my sisters’ names. I have been asked to get a legal heir certificate by the Chennai authorities since her will is unregistered.

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 within 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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