The following article was first published in the Mint newspaper on 12th September, 2023. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.
If a Hindu donor transfers property via a registered gift deed but subsequently sells this property to a third party soon after, which document will hold legal precedence?
Your query infers that all the right, title and interest of the donor in the concerned property has been unconditionally and irrevocably transferred in favour of the donee under the registered gift deed. Hence, the title to the property in question has been passed on to the donee; and hence the donee is now the absolute owner of such property.
Any subsequent purported transfer of the same property by the donor in this case by virtue of any document or otherwise, will not affect the rights of the donee. In other words, the third-party purchaser will not get any valid title to such property and the rights of such third-party purchaser will be subject to the rights of the donee.
I am exploring the possibility of crafting distinct wills for each property in my possession. I am seeking guidance on the legal viability of such an approach. Additionally, I would like to know if creating separate wills for each property is indeed a viable option.
—Name withheld on request
Assuming that all the assets proposed to be bequeathed under testamentary instrument(s) are held in India, only one will is to be prepared for all such assets. The executors of your will have to take steps to obtain probate (if so applicable) of such will in India from the relevant court, if required; and ensure that the bequests of different assets in favour of different legatees under the will takes effect in accordance with the provisions of your will. Multiple wills are highly likely to cause issues on their validity and run a risk of being held invalid; and very likely to cause confusion. That said, if you hold assets in multiple jurisdictions (i.e. outside India as well), then it is advisable to make one will for each such jurisdiction where the assets are held as this will ensure smoother succession of your estate in favour of the legatees.
Do reach out to your attorney for a deeper discussion and evaluating the pros and cons based on your nature of assets, number of legatees, inter-personal relations among family members, etc.
