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A gift deed takes effect upon the payment of stamp duty, registration

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Is gift deed enough to transfer my grandfather’s property to my father?

—Name withheld on request

A gift deed is a valid mode of transferring a property, provided it is duly executed and the transferor is the absolute legal owner and there are no orders of court or any competent authority which prevents such transfer. Such a gift deed shall further record that the gift is duly accepted by your father and your father is put in possession of the property. A gift deed takes effect only upon the payment of requisite stamp duty, and after getting the same registered with the sub-registrar of assurances.

I am buying a resale flat, but due to covid-19 the owner is not able to come from Dubai, so he is sending the power of attorney (PoA) of his mother, who is the second owner of the flat. Can we do the registration with the PoA?

—Name withheld on request

It is important that the PoA is drafted in a manner where it clearly authorizes the PoA holder to execute and register the sale deed. The PoA must also specify if the mother can receive the entire consideration or as per her entitlement.

In your case, as the PoA is made in Dubai, the same will have to be executed before the Indian embassy or consulate for requisite attestation with minimum two witnesses to the execution of the same. The PoA needs to be stamped within three months from the date of its receipt in India.

Such a PoA, when presented for registration in India is a compulsorily registrable document under the Indian Registration Act, 1908. Only a duly registered PoA is considered valid for sale of an immovable property in India.

What is the difference between holding properties as joint tenants and holding as tenants-in-common? Are these terms used for owned or rented out properties?

—Jaspreet

The terms, joint tenants and tenants-in-common, are used for determining the type of ownership of the holder of the property. When there are co-owners in an immovable property, the ownership can either be on joint tenancy or tenancy-in-common basis, which depends on the terms in the purchase deed or any valid transfer document.

In tenancy-in-common, the owners may have different ownership interests which can be obtained at different times, whereas under joint tenancy, the owners generally obtain equal shares in the property under the same deed at the same time.

Under tenants-in-common, upon the death of one of the tenants, the interest in the property will devolve according to the Will of the deceased or as per the succession laws. While, under joint tenancy, the interest of a deceased owner or holder is transferred to the surviving owners.

Aradhana Bhansali is partner, Rajani Associates. Queries at [email protected]

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