When gifts come with a li­a­bil­ity

An oner­ous gift has both ben­e­fits and li­a­bil­i­ties at­tached to it and it is up to the per­son re­ceiv­ing it to ac­cept or re­ject it in to­tal­ity

HT Estates - - HTESTATES - Su­nil Tyagi

Agift of an im­move­able prop­erty is gen­er­ally con­sid­ered t o be a vol­un­tary t rans­fer of prop­erty with­out any kind of con­sid­er­a­tion. When­ever a per­son is gifted an im­move­able prop­erty, it is pre­sumed that he has re­ceived some­thing that is valu­able and ben­e­fi­cial for him. How­ever, such a gift can some­times come with an obli­ga­tion to fu­fill cer­tain con­di­tions. This is re­ferred to as an oner­ous gift.

Oner­ous gifts are ac­com­pa­nied by cer­tain charges that are im­posed by the donor (giver of the gift) on the donee (re­cip­i­ent of the gift). It is based on the prin­ci­ple that ‘he who ac­cepts the ben­e­fit of a trans­ac­tion must also ac­cept the bur­den of the same’.

Here’s how one can il­lus­trate the same with an ex­am­ple. ‘A’ gifts his house to his son ’B’ but the prop­erty is mort­gaged and B, if he is ready to pay for it, can ac­cept the gift. He also has the op­tion to re­ject the of­fer.

Once an oner­ous gift has been ac­cepted, sub­ject to the con­di­tions im­posed, it can­not be dis­claimed. The po­si­tion in law is that it is open to the re­ceiver/ ben­e­fi­ciary/donee to whom an oner­ous gift is given ei­ther to ac­cept it in to­tal­ity or to re­ject it al­to­gether.

If a per­son ac­cepts such a gift, he can­not refuse to carry out the obli­ga­tion sub­ject to which it is given or has been re­ceived.

Courts have on var­i­ous oc­ca­sions stated that such bur­den of obli­ga­tion is at­tached to the own­er­ship of the gifted prop­erty and the donee is bound to dis­charge the obli­ga­tion he has ac­cepted with the gifted prop­erty.

Also, such a gift can be dis­claimed by the donee if a dis­claimer to the ef­fect is ac­cepted by the donor.

If a donee re­fuses to carry out the obli­ga­tion so at­tached to the gifted prop­erty and the donor wants to re­voke the gift so made by him, he can do so only if the gift is ex­e­cuted with a con­di­tion and there is an ex­press men­tion of the power to re­voke the gift so made by the donor in case of non-com­pli­ance of such con­di­tion/obli­ga­tion.

There may be a case where sev­eral prop­er­ties (with an obli­ga­tion to pay a loan) are gifted to a per­son through a sin­gle gift deed and only one is bur­dened with an obli­ga­tion.

In such a case, if the donee de­cides to ac­cept the gift, he has to ac­cept the gift as a whole (in­clud­ing the one with the obli­ga­tion at­tached) or not ac­cept it at all.

A per­son may also be gifted prop­er­ties through var­i­ous i nde­pen­dent gift deeds. I n such a case, it is com­pletely on the dis­cre­tion of the donee to ac­cept only those gifts which, he thinks, are go­ing to be ben­e­fi­cial for him. He can choose to re­ject the gifts which come with bur­den­some obli­ga­tions at­tached to them.

Thus, the ba­sic prin­ci­ple un­der­ly­ing the oner­ous gift of may be ser­vic­ing a per­sonal loan, a home loan and per­haps a car loan and in­ter­est rates for all th­ese dif­fer­ent types of loans are dif­fer­ent. The only way to do so is to con­sol­i­date all your loans into a sin­gle loan typ­i­cally against a prop­erty. You can do so pro­vided the value of the prop­erty can jus­tify an ad­di­tional loan and your re­pay­ment track record for all the loans has been good. Can I get a loan for a plot?

- Dru­pad Pant a prop­erty is to gift both ben­e­fit and li­a­bil­ity at­tached to the gift be­ing made to an in­di­vid­ual/ re­ceiver of such gift.

It is to­tally up to the donee to ac­cept or re­ject such gifts in to­tal­ity. a home loan) and make the loan avail­able only for 5-15 years (ver­sus 20-25 years for a home loan). How should I choose the ten­ure of my loan?

- Sameer Lal If loan el­i­gi­bil­ity is a con­straint, go for the long­est pos­si­ble ten­ure. Some banks al­low 25 or even 30 years though most banks gen­er­ally al­low only up to 20 years. The max­i­mum ten­ure is also re­stricted by your age at the end of the ten­ure so as to en­sure that your loan re­pay­ment ends on or be­fore the re­tire­ment age.

Even if loan el­i­gi­bil­ity is not a con­straint, you should

How­ever, once an oner­ous gift has been ac­cepted, it can­not be dis­claimed by donee (un­less dis­claimer is ac­cepted by the donor) and the donee is then bound to ful­fill the obli­ga­tion im­posed on him by ac­cept­ing such a gift. opt for the long­est ten­ure pos­si­ble so that you re­tain the flex­i­bil­ity of low EMIs and at the same time you can pre-pay the loan when­ever you have sur­plus funds, es­pe­cially since pre­pay­ments on float­ing rate home loan do not at­tract any pre­pay­ment charge. Longer ten­ure also makes sense as in­ter­est rates are the same ir­re­spec­tive of the ten­ure of the loan. Can un­mar­ried cou­ples or friends be­come co-own­ers of a flat. Can they avail a joint loan, if not be­ing co-own­ers can they in­di­vid­u­ally take loans from banks for the same house.

- Arindam Biswas There is no re­stric­tion as to who can jointly own a flat. How­ever, as far as join­ing in as a co-bor­rower for a home loan is con­cerned, only a spouse or close rel­a­tive is per­mit­ted by banks to take a home loan jointly. So, it is un­likely that un­mar­ried cou­ples or friends who want to jointly own a flat can get a home loan. But if there two sep­a­rate flats that are be­ing used as a sin­gle unit but owned by two sep­a­rate in­di­vi­u­dals, then each of the own­ers can get a loan on their in­di­vid­ual flat.


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