Is it mandatory to get NOC for a gift deed?

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Is it mandatory for people to obtain a no-objection certificate (NOC) from their family members for any gift deed received by them?

—Name withheld on request

 

Under the relevant provisions of the Transfer of Property Act, 1882, ‘gift’ is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person—the donor—to another—the donee—and accepted by or on behalf of the donee. Acceptance must be made during the lifetime of the donor and while he is still capable of giving. 

If the subject matter of a gift is immovable property, the same is required to be duly stamped and registered at the sub-registrar of Assurances having jurisdiction for the gift of immovable property to be legally valid.

So long as the donor is the legal owner of the property and it is self-acquired, he can gift the property in favour of anyone. It is legally incorrect to state that for accepting a gift, the donee has to take an NOC from his family members. A duly registered gift deed is sufficient for effecting transfer of all rights, title and interest in the property unto the donee.

 

I have bought a flat from my brother and sister-in- law. The ‘Society’ lawyer has opined that transfer fees are not payable under bye-law No.38 as the transaction is between family members. Is this right?

—Name withheld on request

 

We assume from the reading of the query that the flat is located in a society governed by the Maharashtra Co-operative Societies Act, 1960.   

The transfer of shares and interest in the capital /property of the society are governed by the procedure prescribed under bye-law no. 38 to which a ‘note’ is appended, which inter alia provides that “payment of amount of premium shall not apply to transfer of shares and interest of the member/transferor in the capital/property of the society to the member of his family or a registered gift deed executed by the member/transferor”. 

Further, the definition of the family under the bye law inter alia includes in its definition brother and sister-in-law. Thus, such a transaction between family members will not attract any transfer fees even if the transaction is through a sale or gift deed.

In the scenario, the opinion of the society lawyer is in terms of the bye-laws.

 

Aradhana Bhansali is partner, Rajani Associates.

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