A registered gift deed can be revoked in India in only 3 situations: a condition both sides agreed to in the deed, a civil suit filed within 3 years of learning the facts, or an application by a senior citizen to the Maintenance Tribunal. The condition has to be tied to an event outside the donor's control; a clause that lets the donor take the gift back at will is void. The civil suit runs on a ground on which a contract could be rescinded, such as fraud, coercion, misrepresentation or undue influence. The senior citizen's route is open where the deed required the person who received the property to look after them and that person has stopped. Which route applies depends on what the deed says and how old you are. All three routes close once the property is sold to a buyer who paid for it and had no notice.

Two of the three routes depend on what the deed says: the revocation condition, which both sides must agree to, and the condition of care. WillJini drafts the gift deed, including any revocation condition both sides agree to or any condition of care, and handles the stamp duty and the registration. Where the donor wants possession, residence rights or lifetime use after gifting, those terms are written into the deed at that stage.

What if your question is the cost or the drafting?

If you want to know what a gift deed costs, the Maharashtra stamp duty page covers it. If the deed has not been made yet, how to prepare a gift deed covers the drafting and the registration. If you are choosing between a will and a gift, read the difference between a will and a gift deed. If you would rather hand the drafting over, WillJini's gift deed service covers India, with a Mumbai page as well.

Related guides:

• The ultimate guide to preparing a gift deed in India

When can a gift deed be revoked in India?

The Transfer of Property Act, 1882 governs the revocation of a gift. Section 126 says when a gift may be suspended or revoked. It has four sentences.

The first sentence states: "The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be."

The second sentence states: "A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded."

The third sentence states: "Save as aforesaid, a gift cannot be revoked."

The fourth sentence states: "Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."

The Act gives two examples. Illustration (a) states: "A gives a field to B, reserving to himself, with B's assent, the right to take back the field in case B and his descendants dies before A. B dies without descendants in A's lifetime. A may take back the field." Illustration (b) states: "A gives a lakh of rupees to B, reserving to himself, with B's assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90,000, but is void as to Rs.10,000, which continue to belong to A." So in that example B keeps Rs 90,000, the Rs 10,000 stays with A, and the gift stands for everything except the part the donor kept the right to take back.

Three things follow for a condition written into the deed. The condition must be agreed by the donor and the donee together; a clause the donor inserts alone into the document is not what the section describes. A clause making the gift revocable at the mere will of the donor is void. Finally, the fourth sentence protects a person who later buys the property from the donee, pays for it, and has no notice of the condition.

Can a gift deed be cancelled just because the donor changed their mind?

A donor cannot cancel a gift deed because they changed their mind. The third sentence of section 126 says so: save as aforesaid, a gift cannot be revoked.

Once a gift is complete it is irrevocable except as permitted by section 126. A change of heart or a falling out between the parties provides no legal ground for cancellation, and a deed of cancellation the donor signs alone does not take the property back, because the statute leaves the donor no such power. The grounds for taking the property back are those in section 126 or in section 23 of the senior citizens statute.

Was the gift ever complete?

A different argument, separate from revocation, is that the gift was never completed at all.

Section 122 of the Transfer of Property Act defines a gift as the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor to another called the donee, and accepted by or on behalf of the donee. The section says that such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. Section 125 adds that a gift to two or more donees of whom one does not accept is void as to the interest that donee would have taken.

Section 123 says how the transfer is made. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. This registration occurs before the Sub-Registrar. If acceptance came too late, or the donor was no longer capable of giving, or the deed was not registered and attested by two witnesses, the gift is incomplete.

Can a parent cancel a gift deed if the child stops looking after them?

A separate route exists for senior citizens under The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The property remedy is section 23(1), which says:

"Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal."

Four things must all be true. The applicant must be a senior citizen, which section 2(h) defines as any person being a citizen of India who has attained the age of sixty years or above. The transfer must have been made after the Act came into force in your state; each state brought the Act into force on a date fixed by its own notification. The transfer must have been made subject to the condition that the transferee provide basic amenities and basic physical needs, so the section does not apply to a plain gift with no such condition attached. And the transferee must have refused or failed to provide them.

Where all four are true, the law itself treats the transfer as obtained by fraud, coercion or undue influence. The senior citizen does not have to prove the donee's state of mind. Where all four are true, the law itself treats the transfer as obtained by fraud, coercion or undue influence, and the Tribunal declares the transfer void if the senior citizen asks it to. The senior citizen does not have to prove the donee's state of mind. The wording printed above is the current wording: the Act has been amended once, on 31 October 2019, and that amendment did not touch section 23.

Who hears the case, and can you take a lawyer?

The Maintenance Tribunal hears applications under the 2007 Act. Under section 7(1), the State Government constitutes one or more Tribunals for each sub-division. Section 7(2) says that the Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State. It is a revenue officer sitting at the sub-division level, not a civil judge.

Section 17 sets the rule on legal representation: "Notwithstanding anything contained in any law, no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal practitioner." A party may be heard in person or through a duly authorised representative, which is not a legal practitioner. The family appears for itself at the Tribunal. A lawyer's work comes earlier, in drafting the deed and its condition, and on the civil side if there is a suit.

Section 15 provides one Appellate Tribunal per district, presided over by an officer not below the rank of District Magistrate. Section 16(1) states an appeal lies within 60 days from the date of the order.

If your case falls under the 2007 Act, you cannot go to the civil court: section 27 bars it, and section 3 gives the Act effect over any other enactment. If it does not, the section 126 case is heard in the civil court. Whether your facts fall inside the Act is the question to take to a lawyer.

How long do you have to challenge a gift deed?

A civil suit to cancel a gift deed must be filed within 3 years, under The Limitation Act, 1963. The Schedule, Part IV, Article 59 sets the period: "To cancel or set aside an instrument or decree or for the rescission of a contract. | Three years. | When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him."

Section 3(1) of the Limitation Act states that every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The court dismisses a late suit even if nobody raises the point. If a plaintiff brings a civil suit based on the defendant's fraud, or knowledge of the right was concealed by fraud, section 17(1) says the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

Article 59 governs a civil suit. Section 23 of the 2007 Act is an application to a Tribunal, and the 2007 Act prescribes no limitation period for it.

What happens if the property has already been sold?

All three routes close once the donee sells the property to a buyer who paid for it and had no notice. Three separate statutes give that buyer the same protection.

The fourth sentence of the Transfer of Property Act section 126 states nothing in the section affects the rights of transferees for consideration without notice. The 2007 Act section 23(2) allows a maintenance right to be enforced against a transferee with notice or a gratuitous transferee, but not against the transferee for consideration and without notice of right. The Limitation Act section 17(1) proviso similarly protects a purchaser for valuable consideration who was not party to the fraud and did not know of it. Whatever legal action the family takes, it does it before the property moves again.

At a glance: the three routes

What does handing it over look like?

The two clauses that decide which route is open, the agreed revocation condition and the condition of care, are written when the deed is drafted. WillJini's gift deed service does that drafting, and its published process has four steps. First, WillJini shares a questionnaire to understand the assets, the parties involved and the details the deed needs. Second, a first draft of the gift deed is shared and finalised on your feedback. Third, WillJini handles the stamp duty and the registration; registration is mandatory for immovable assets, and notarisation suffices for movable assets. Fourth, the title transfer is completed, and the transaction must be disclosed in the year-end tax filing. WillJini prices this work on a case to case basis, and a WillJini lawyer calls you back within 24 hours.

FAQs

Can a registered gift deed be cancelled without going to court in India?

Yes, for a senior citizen who transferred the property subject to a condition of care and whose transferee has refused or failed to provide it. That application goes to the Maintenance Tribunal for the sub-division, presided over by an officer not below the rank of Sub-Divisional Officer, and no lawyer appears for either side. Fraud, coercion, misrepresentation and undue influence are grounds for a suit in the civil court.

What happens if a gift deed has no revocation clause?

If the deed contains no revocation clause, the first route under section 126 of the Transfer of Property Act is closed. What remains is a civil suit on a ground on which a contract could be rescinded, such as fraud, coercion, misrepresentation or undue influence, or, for a senior citizen whose deed carried a condition of care that the transferee has broken, an application to the Maintenance Tribunal.

Is acceptance of a gift deed mandatory for it to become irrevocable?

Acceptance is required for the gift to exist at all. Section 122 of the Transfer of Property Act says that acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

Can family disputes be a ground to revoke a gift deed?

No. A family dispute or a simple change of mind does not provide a legal ground to revoke a gift. Section 126 of the Transfer of Property Act says that save for the specific exceptions it lists, a gift cannot be revoked.

Can a gift deed be cancelled if it was obtained by fraud or undue influence?

Yes. Section 126 allows a gift to be revoked in any of the cases in which a contract might be rescinded. A civil court can cancel the deed if the plaintiff proves fraud, coercion, misrepresentation or undue influence, provided the suit is filed within 3 years of when the facts first became known.

How do senior citizens cancel a gift deed under the 2007 Act?

A senior citizen files an application before the Maintenance Tribunal under section 23 of the Act. They must show four things: that they are sixty or over, that the transfer was made after the Act came into force in their state, that it was made subject to the condition that the transferee provide basic amenities and basic physical needs, and that the transferee refused or failed to provide them. They do not have to prove fraud; the Act deems the transfer to have been made by fraud, coercion or undue influence, and the Tribunal declares it void at their option. No lawyer appears for either side.

What is the time limit to challenge a gift deed in India?

For a civil suit to cancel the instrument, Article 59 of the Limitation Act sets the period at 3 years. The clock begins when the facts entitling the plaintiff to have the instrument cancelled first become known to him. The senior citizens route before the Maintenance Tribunal carries no prescribed limitation period.

Can a lawyer appear before the Maintenance Tribunal?

No. Section 17 of the 2007 Act says that no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal practitioner. A party may be heard in person or through a duly authorised representative who is not a lawyer.