Will & Gift Deed are the two instruments by way of which the owner/owners of the property/ies ( movable or immovable ) parts with his/ their property/ies or transfers it in favour of the person/s of their wish.

However, the basic difference between the two are as under :

1. Will : In case of a will, the transfer of the property takes place after the death of the executor. However, probate of will needs to be obtained from the competent court of law for execution of the will. Will is advisable to be regsitered though it is not mandatory in the eyes of law.

If few changes to the Will needs to be made without changing the entire Will, the same can be done by making a Codicil to the Will by the executor.

All Wills can be revoked by the executor/ Testator

2. Gift Deed : Gift Deed on the other hand transfers the property of the executor in favour of the person in whose favour it is gifted immediately. Gift Deed needs to be compulsorily registered and the stamp duty charges varies depending on the relationship between the executor & in whose favour it is gifted.

It is note worthy that both Will & Gift Deed can be revoked / cancelled by the executor during his/her life time.

What properties cannot be gifted :

1. Self acquired property can be gifted by the owner in favour of anyone of his/her choice.

2. The owner can transfer his share of the ancestral property by way of Gift Deed.

3.It is to be noted that not only sons but daughter/s also have share in the ancestral property.

4.Share of daughter/s & wife varies depending upon the personal laws to which they belong.

When no will is made , after the death of a person, his property devolved according to the respective laws of Succession.

Succession cases needs to be filed in the competent court of law which after following due process issued certificate of Succession.

Introduction: Women in India have inheritance right to the property of her ancestors depending on the religion to which she belongs. Different communities have different inheritance rights.

Right Of Hindu Women :

It is governed by Hindu Succession Act, 1956: In India there are two schools of Hindu Law namely ‘ Mitakshara’ and ‘ Dayabhaga’. Dayabhaga’ school is followed in limited areas whereas Mitakshara school is widely accepted in large parts of the country. The major difference between the two is with respect to inheritance and Joint Family System.

Mitakshara Law recognizes two modes of devolution of property namely Survivorship & Succession The rule of Survivorship applies to the Joint Family Property and rules of Succession apply to separate property under absolute ownership held by the deceased.

However , Dayabhaga school recognizes only one mode of devolution, which is Succession.

The cardinal doctrine of Mitakshara school is that property inherited by a Hindu from his father, father’s father or father’s father’s father is ancestral property which meant unrestricted heritage as regards his male issues. A property inherited by a Hindu from other relations is his separate property. A female cannot be a coparcener under the Mitakshara school.

However after the amendment of the Hindu Succession Act in 2005, a female becomes a coparcener by birth in their own right in the same manner as the son and are therefore entitled to equal share as that of a son.

Wife : A wife is entitled to an equal share of her husband’s properties like other surviving entitled heirs . If there are no other shares, the wife has full full right to inherit the entire property of her deceased husband.

A married woman has also exclusive rights over her individual property. She is the sole owner of her assets whether these are earned, inherited or gifted.

In case of inter faith marriage, the wife is entitled to Inheritance as per the personal law applicable to the religion of her husband.

If a couple is divorced , all issues related to maintenance and permanent alimony are ordinarily decided at the time of divorce. Wife does not have a right in his estate if he dies without a will.

Daughter : After the amendment of the Act in 2005, now a daughter has equal right to ancestral property as a son and her share in it accrues by birth itself.

A daughter will have the same rights as a son to the father’s property be it ancestral or self acquired. If father had died before 2005,she will have no right over the ancestral property and self acquired property will be distributed as per father’s will.

In case of self acquired property, father has a right to gift the property or will it to anyone he wants and a daughter would not be able to raise any objection.

Mother and Sister : Mother is entitled to receive an equal share of property of her predeceased son like other surviving entitled bsharers.

The sister after a brother’s death being a class II legal heir would inherit along with others as per entry II only if class I legal heir and the father of the deceased has also expired.

Conclusion: In view of the Amendment to the Hindu Succession Act in 2005, a daughter of a coparcener becomes a coparcener if the property upon which she is staking claim has not been partitioned before December 20,2004.

It is worth mentioning here that the Hindu Succession Act is applicable related to intestate or unwilled succession among Hindus , Buddhists, Jains and Sikhs

My upcoming blog/s would comprise details of succession to unwilled properties to women of other communities as well.

Cheque has become an integral part of today’s every transaction/business/loan etc. & thus everyone has to deal with the issue related to cheque at least at some or the other point of time in a life time. The legal action initiated for cheque bounce case is under section 138 of the Negotiable Instruments Act,1881. The said action initiates a criminal case which if proved has provision of up to two years of imprisonment & up to double the cheque amount against the accused. The cheque needs to be issued by the drawer on an account maintained by him.

Meaning/Definition:

1.Drawer : The author of the cheque is called the drawer

2. Payee – The person in whose favour , the cheque is drawn is called payee

3.Drawee– The bank which is directed to pay the amount is known as the drawee

Reason for issuance of cheque – The cheque should be issued towards discharge of a debt or liability.

Cause Of Action : The drawee bank issues a cheque return memo to the banker of the payee mentioning the reason for non payment & gives the dishonoured cheque & the memo to the payee. The payee can resubmit the said cheque within 3 months from the date on it if he believes it will be honoured the second time.

Process : Action under the aforementioned Act is initiated by issuing a notice in writing to the drawer of the cheque within 30 days from the date of receiving the dishonoured cheque & the memo giving the drawer , 15 day’s time to repay the amount mentioned in the cheque.

If no payment is made within the period specified in the notice , criminal case is filed before the court of concerned Judicial Magistrate First Class . If payment is made by the drawer after issuance of notice, the cause of action ends.

Recently, the Honb’le Supreme Court has held that the security cheque also attracts the provisions of the Negotiable Instruments Act.

Meaning : Mutation or Namantaran means change in the ownership of a property in the revenue records of the state government. Change in ownership may occur by way of transfer/gift/inheritance. In all such cases, mutation is necessary .

Importance : Apart from being a legal requirement for enabling the state revenue department to collect the applicable property tax from the rightful owner,it is also beneficial & important to the owner.

Example: If A purchases a land/ property from B by way of a registered sale deed & A neglects to get the said property mutated in his name in revenue records & if at any future point of time , the government acquires the said land for any public purposes, the government would pay the acquisition amount to B & not A though A is the rightful owner because as per revenue records,B is the owner of the property.

Mutation is also required for flat owners as against the general misconception that flats cannot be mutated in the name of the owner.

Even Banks insist for mutation certificate of the existing owner .

Process: An application for mutation needs to be filed in the office of the Tehsildar in whose jurisdiction, the property is situated along with copy of Sale deed, applicable fees, Affidavit on stamp paper of requisite value along with copy of Receipt of up to date property tax.

In case of property inherited by way of will or death of the existing owner, an application for mutation,copy of Death certificate,copy of Will/ Succession certificate, Affidavit along with the applicable Court fee needs to be submitted.

The Tehsildar after conducting verification & following the due processes , finally mutates the property in the name of the rightful owner.

In case of any query, please feel free to contact me on the comment box.

The most common issue among the middle class in India as on date is with regard to the delayed possession of flats/houses booked by them.

People are confused about the legal means to redress this issue.

The two easy & simple ways are

• To approach Real Estate Regulatory Authority (RERA) in the state where the said authority exists/operational
• To approach Consumer Disputes Redressal Forum/ Commission

My suggestion as on date is to approach Consumer Disputes Redressal Forum/ Commission for effective redressal of the said grievance. The reason being as on date the orders passed by the said Forum/ Commission are executed and as such are comparatively better.

There is no effective mechanism for execution of the RERA orders and as such the homebuyers run pillar to post with the order of RERA in their favour.

Recently the Honb’le Supreme Court has upheld the amendment to the Insolvency & Bankruptcy Code (IBC) with respect to the classification of homebuyers as Financial creditors & as such the said code would also be of great help. So approaching the Company Law Tribunal would be an additonal & effective means as well for the homebuyers.

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