The short answer
A gift deed transfers property to someone now, and once it is complete you cannot take it back at will. A will transfers nothing now: it takes effect only after your death, and you can change or cancel it as often as you like until then. If you want to keep control and ownership for your lifetime, a will fits. If you want the person to own the property today, and you accept that you are giving up control, a gift deed is the tool. The rest of this post explains how each works in Delhi so you can see the trade-offs.
How a gift deed works
A gift is the voluntary transfer of existing property, without payment, by one person (the donor) to another (the donee), accepted by the donee during the donor’s lifetime. The rules are in Sections 122 to 129 of the Transfer of Property Act, 1882.
- It must be registered. For immovable property (a house, flat or plot), Section 123 requires a written instrument signed by the donor, attested by at least two witnesses and registered before the Sub-Registrar. Stamp duty is payable on it.
- It takes effect immediately. The donee becomes owner when the gift is complete, even if the donor continues to live in the house. If the deed reserves a right to live there, say so in the deed.
- The donee must accept it. Acceptance is required during the donor’s lifetime. A gift made to a donee who dies first lapses.
- Only existing property can be gifted. A gift of property you may acquire in future is void (Section 124).
- It is hard to undo. Section 126 allows revocation only if the deed provides a revocation condition agreed by both sides and not depending on the donor’s will alone, or on grounds that would let a contract be rescinded, such as fraud or undue influence.
How a will works
A will is a legal declaration of how you want your property to pass after death, governed in most cases by the Indian Succession Act, 1925.
- Written, signed and attested. Under Section 63 the maker signs it, and at least two witnesses each see the maker sign and sign in the maker’s presence.
- Registration is optional. Registering is not required for validity, but it helps later.
- It can be changed at any time. Until death, the maker can revoke it or make a new one. The latest valid will governs.
- Nothing happens until death. The property stays yours, and you can sell or mortgage it during your life. Whatever you still own at death passes under the will.
- It has to be proved. After death, the person relying on the will must prove it was properly executed and that the maker was of sound mind. Many beneficiaries then apply for probate or mutation. See probate vs succession certificate vs legal heir certificate.
Side-by-side comparison
| Gift deed | Will | |
|---|---|---|
| When it takes effect | Now | On death |
| Can you change your mind? | Not at will | Yes, any time |
| Registration | Compulsory for immovable property | Optional |
| Who owns the property meanwhile? | The donee | You |
| Witnesses | Two | Two |
| Typical risk | Loss of control, a dispute with the donee | Challenge after death, delay in proving it |
When a gift deed makes sense
- You want a clean, present transfer, for instance to a child who will live in or manage the property.
- You want certainty now rather than a dispute later.
- The property is fully yours, with a clear title.
The risks: you lose control, and the property can be dealt with by the donee. A gift made to defeat creditors can be set aside. In some cases a gift to a relative made on the condition that they will look after a senior citizen can be declared void under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, if the relative fails to provide basic amenities, but that depends on the facts and the wording of the deed. If you want a safeguard, ask for it to be written in.
When a will makes sense
- You want to keep ownership and control until death.
- You want to be able to change beneficiaries as family circumstances change.
- You want to divide property among several people in shares.
The risks: a will is contested after death, when the person who made it can no longer explain. It also does not stop the maker from selling the property. The strongest protection is careful execution: sound mind recorded, independent witnesses, a clear description of the property, and reasons for any unequal division. For how such disputes are fought, read how to challenge a will in Delhi.
Common mistakes to avoid
- Relying on an unregistered gift. Handing over keys or writing a letter does not transfer a flat.
- A will naming property you do not own outright, such as a share you hold jointly with others.
- Gifting everything and keeping nothing, which leaves you dependent on the donee.
- Choosing witnesses who benefit under the document. A beneficiary should not be a witness.
- Ignoring personal law. This post covers the general law as it applies to most families. Personal law can change the answer, for example a Muslim’s will is generally limited to one-third of the estate without the heirs’ consent, and gifts follow their own rules.
- Ignoring tax and stamp duty. The tax treatment differs between a gift and an inheritance. Take a chartered accountant’s advice alongside the legal drafting.
What to bring when you see a lawyer
- The title documents, the last sale deed or the previous will or gift, and the mutation record
- Property tax receipts and the society or builder papers
- Identity and address proof of everyone involved
- A list of the family members and the shares you intend
Which should you choose?
Neither is better for everyone. If you are unsure, it is common to keep the property by will while you are alive and to use a gift deed only where you want a present transfer. Our property lawyers in Delhi and succession lawyers in Delhi prepare and review both documents, and act if either is later disputed. Call 99115 44811 or write to manujalawyers@gmail.com.
This post is general information, not advice on your case, and no lawyer can promise how a court will treat a particular document.