GIFT (SECTIONS 122-127)

DEFINITION OF “GIFT”:

According to Sec 122 of T.P. Act: “Gift” is the transfer of the certain existing
moveable or immoveable property made voluntarily and without
consideration, by one person, called the donor, to another called the donee,
and accepted by on or behalf of the donee.

• Who can give a gift?

• Who can accept a gift?

• Acceptance when to be made

 ESSENTIALS OF GIFT
• Donor

• Donee

• There must be transfer of ownership

• There must be existing property

• Transfer is without consideration ( Munni Devi V Chhoti AIR 1983)

• The transfer is made voluntarily ( Surjit Sing V vimla Devi AIR 2008)

• Gift must be accepted by transferee

 Munni Devi V Chhoti (AIR 1983)

 In this case it was held that a gift deed was executed by a mother in favor of her
only daughter and the daughter promised to look after and maintain the mother
during the life.

 It was held by the court that the gift was made on account of natural love and
affection and not in consideration of the promise made by daughter.
 Surjit Singh V. Vimla Devi ( AIR 2008)

 The donor was old illiterate and ailing lady. The donee was her collateral.

 He was the dominant party and was able to exercise active influence.

 The woman deposed that she was taken to the house of donee and donee was given
to her there to ward off and evil sprit.
 At that time two gift deeds were executed by taking her signatures under the pretext
that she was signing her pension papers.

 As soon as she came to know, she took action challenging the gift deeds. the court
held that it could not be said that that she had executed the gift deeds voluntarily.

 she was positively acting under influence and had no independent advice the deeds
were set aside.
TRANSFER OF OWNERSHIP:

• Absolute interest.

EXISTING PROPERTY:

• The property may either be movable or immovable.

• It may be tangible or intangible.

• The property must be existing at the date of the transfer.

GIFT OF FUTURE PROPERTY IS VOID: Where the sale of house in
favor of ‘A’ is completed on 5th November 1993 but ‘A’ had made a gift of that
house to ‘B’ on 5th October ,1993.the gift of B is void.

 Dhomodharan Kevirajan V T.D. Rajappan (AIR 1992

Ker 397)

In this case a mother settled her properties by way of gift in favor of son for
settling dispute between family. Only for consideration that the son religuished his
right to future shares in the property left by her.
Kerala high Court was held that the deed was not a gift.
TRANSFER IS WITHOUT CONSIDERATION:

 The word consideration has the same meaning as given in sec 2(d) of the Indian
contract Act.

 It must be gratuitous.

 The value of consideration is immaterial.

 Munni devi V Chooti ( AIR 1983)

In this case a gift deed was executed by mother in a favor of her only daughter
promised to look after and maintain the mother during her life.
THE TRANSFER IS MADE VOLUNTARILY:

 It suggests that the donor has executed the gift deed with full knowledge of nature
and circumstances of the transaction.

 The donor must make gift voluntarily.

 His consent must be free.

 A gift of purdanashin lady.

 Gift
GIFT OF IMMOVABLE PROPERTY (SEC 123)

A Gift of immovable property must be made only through the registered document.
Irrespective of the valuation of the property.
 The Trial Court accepted the plea and dismissed the suit.

 On appeal, the District Judge reversed the finding and held that the partition deed
between the plaintiff and the defendant was only an intention to gift over the land to
their cousin sister Kusturibai.

 It was not in fact executed and, therefore, the gift is not valid and does not bind the
respondent. Accordingly, the suit was decreed.

 In the second appeal, it was confirmed. Thus, this appeal by special leave.
GIFT OF IMMOVABLE PROPERTY

THIS GIFT DEED made on …….. day of month ………..year …………, 2000, ……………between
Mr.…………….s/o…………..r/o……………(here in after called the donor) and
Mr.…………….s/o…………..r/o……………(hereinafter called the Donee )

WHEREAS the donor, the absolute owner in possession of the entire property mentioned in the schedule hereto
annexed, valued at present, at Rs……….is desirous to dispose of his entire property by way of gift, out of natural love and
affection, in favor of the donee who is donor’s cousin and has lived with the donor since his childhood.

THIS DEED OF GIFT WITNESSES AS FOLLOWS :-

That the donor out of natural love and affection and without force or compulsion or undue and with his free will and in fill
possession of his body senses, doth, hereby, give, transfer and convey his entire property, mentioned in the schedule hereto,
unto the said donee will all profits, advantages, privileges and appurtenances whatsoever with the said property, to have and
to hold the said property, hereby gifted, unto and to the sue of the said donee for ever and absolutely.

That the said property has been gifted without any let or hindrance whatsoever from or by the said donor or by any person or
persons claiming from, under or in trust of him.

IN WITNESSES WHEREOF the donor doth sets and subscribes his signature and delivers in the presence of the witnesses at
present on the day, month and year above noted.

SD/- Donor……..
SD/- Donee…….
Witnesses:
1……………

2……………
Scheduled referred to above.
 Gift deed Documents

 Following are the list of documents (enclosures) required to be produced at the

time of presentation of the document before the jurisdictional Sub-Registrar.

 An Identical copy of the Gift-deed containing name and details of Donor and Donee,
property Details and property value in the prescribed format of Gift Deed.

 Statement of particulars of property and its market value.

 Parent Document (prior to title deeds)

 Title Deeds to show how the Donor gets the property.

 Encumbrance Certificate of the property.

 Extract of assessment register of the property.

 If the property is an agricultural land, No objection certificate from Tahasildar.

SUMMARY:

 A gift is the transfer of property by one person to another made voluntarily and
without consideration.

 In order to constitute a valid gift, a basic requirement is acceptance. If a document of

gift, after its execution or registration in favor of the donee, is handed over to him by
the donor, it amounts to a valid acceptance of the gift.

 The gift must be an existing property. It cannot be a future property.

 Section 126 of the Transfer of Property Act provides that a gift may be revoked if
some conditions are met.

 The donor and donee must have agreed that the gift will be suspended or revoked on
the happening of a specified event.

 A gift which was not based on fraud, undue influence, misrepresentation or an

onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only
by resorting to legal remedy in a court of law.
 Therefore donee who takes the possession of a immovable of land under
unregistered gift deed can not defend his possession on being evicted.

However following two points are more important with

regard to requirement of registration :

 Although registration is gift of immovable property is must but the gift is not
suspended till registration. A gift may be registered and made enforceable at law
even after the death of the dooner provided essential condition are fulfilled.

 Where the essential conditions for a valid gift are not fulfilled. Registration shall
not validate the gift.
GIFT TO MINOR:

 Ramesh Chand v Tarachand ( AIR 2008)

In this case a widow gifted her self acquired property by executing a gift deed in favor
of a minor. A persons who were not her heirs ,agnates' and cognates were not allowed
to question the disposition ,the donee being a minor at the time, the property was put in
the possession in the donee's father and was looked after by father on behalf of the
minor.
In this case it was held that the father had no right to execute a will giving the property
to the sons of his second wife. oral evidence is not allowed to show that the donor is
always intended to gift the property to the father of the Donee.

.
SEC 125. GIFT TO SEVERAL, OF WHOM ONE DOES NOT ACCEPT:

A gift of thing to two or more donees of whom one does not accept it, is void as to
the interest which he would have taken had he accepted

• Gift may be made to or two more persons jointly.

• This section provides that where a gift is made to several donees of whom any one
donee does not accept the gift the gift on his part only, is void. Gift in favour of
other donees stands valid.
WHEN GIFT MAY BE SUSPENDED OR REVOKED:

According to sec 126:

• 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.

• A gift may also be revoked in any of the cases in which if it were a contract it might
be rescinded. Such as aforesaid a gift cannot be revoked. Nothing contained in this
section shall be deemed to affect the rights of transferees for consideration without
notice
• 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 die before A. B dies without descendants in A’s
lifetime . A may take back the field.

• A Gives a lakhs 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 A.

 By Recession as in the case of a contract.

 Revocation by mutual agreement.

SEC 127 ONEROUS GIFT:

 Where a gift is in the form of a single transfer to the same person of several things of
which one is and the others are not burdened by an obligation, the donee can take
nothing by the gift unless he accepts it fully.

 Where a gift is in the form of two or more separate and independent transfers to the
same person of several things, the donee is at liberty to accept one of them and
refuse the others although the former may be beneficial and the latter may be
onerous.
SEC 128 UNIVERSAL DONEE:

It states that subject to the provisions of section 127, where a gift consists of the donor’s whole
property the donee is personally liable for all the debts due by the donor at the time of the gift to
the extent of the property comprised therein.

 Universal donee is a person who gets the complete property of another under a gift deed.

 If any portion of the donor’s property whether movable or immovable is excluded from the
gift the donee is not a universal donee.
 This section enacts a principle that if a person who has to pay debts gives his total
property to another under a gift deed this donee becomes personally liable to pay the
debts of the donor.

 This liability can extend only to the extent of the property that he receives under the gift
but cannot exceed it.
THE ESSENTIALS OF DONATIONS MORTIS CAUSA ARE:

1) The gift must of movable property only;

2) It should have been made in contemplation of death;

3) The donor is suffering from an illness and has an immediate apprehension of death;

4) The possession of property is delivered to the donee;

5) The gift becomes void if the donor recovers from his illness or the donee
predeceases him.
ESSENTIAL CONDITIONS FOR A VALID GIFT (HIBA) UNDER
MUSLIM LAW:

(I) Declaration,

(II) Acceptance, and

(III) The delivery of possession.

A Hiba is not valid unless these three essential conditions are fulfilled.
GIFT UNDER MUSLIM LAW-
HIBA
DECLARATION OF GIFT:

• Declaration is a statement which signifies the intention of the transferor that he

intends to make a gift.

• The person who declares that he is transferring his property through a gift is called
donor.

• The person in whose favour the gift is made is called donee. Declaration is,
therefore, the manifestation of the intention of the donor to divest his ownership in
the property and to vest it in the donee.

• A Hiba may be made orally. Writing is not necessary.

• The donor may declare the gift of any kind of property, of any valuation, either orally
or write a deed.

• Under Muslim Law, writing is not necessary for the validity of gift whether property
is movable or immovable.

• As per Section 123 of the Transfer of Property Act which provides that gift of
immovable property must be in writing and registered, is not applicable to gift made
by Muslims.
  llahi Samsuddin v. Jaitunbi Maqbul

In this case the Supreme Court held that under Muslim Law, declaration as well as
acceptance of gift may be oral whatever may be the nature of property gifted. Where a
gift is made in writing, it is called Hibanama. This gift-deed (Hibanama) need not be
on stamp-paper and also need not be attested or registered.
  Md. Hesabuddin v. Md. Hesaruddin.

A Muslim woman made a gift of her immovable properties to her son. The gift was
written on ordinary paper and was not registered. The Guwahati High Court held that
the gift was valid because under Muslim Law writing and registration is not any
essential condition for the validity of gifts.

Express Declaration:
• The declaration must be made in clear words.
• A declaration of gift in ambiguous words is void. That is to say, the declaration
must expressly suggest that the donor is relinquishing his ownership completely.
COMPETENCY OF THE DONOR:

Declaration of a gift is made by the donor. Donor must be a competent person. Every
Muslim is competent to make a gift if he has capacity as well as the right.

CAPACITY:

For a valid Hiba, the donor must be:

(i) Adult

(ii) of sound mind, and

(iii) Muslim.
ACCEPTANCE OF GIFT:

 Gift must be accepted by the donee.

 Donee is that person in whose favour the gift is made.

 Gift is a bilateral transaction. It takes place between two persons.

 In the transfer of property by way of gift, the first step is the declaration of gift by
the donor and the second is the acceptance by the donee.

 Acceptance signifies the intention of the transferee (donee) to take the property and
become its owner. Without acceptance a gift is not complete.
DELIVERY OF POSSESSION:

 Delivery of possession is an act by which a donor puts the donee in possession of

the property.

 Under Muslim law, a gift is complete only after the delivery of the possession.
Therefore, the gift takes effect from the date on which the possession of the property
is delivered to the donee; not from the date on which the declaration was made.

 Delivery of possession is so important in the Muslim law of gifts (Hiba) that without
delivery of possession to the donee, the gift is void even if it has been made through
a registered document.