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Section 122
(vi)
Gift is the transfer of certain existing movable or immovable property Made voluntarily and without consideration; By one person , called the donor, to the another person , called the donee; and Accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before the acceptance, the gift is void.
Essential Elements
There must be a transfer of ownership of a property The property must be in existence. The transfer must be voluntarily made and without consideration The property must be accepted by or on behalf of the person to whom it is transferred. The transfer must be effected in the manner prescribed by law.
Transfer of Ownership
A gift necessarily involves transfer of ownership. In this the whole of the interest of the person in a property is transferred in favour of another person. The person transferring the interest is known as donor and the person to whom the interest is transferred in a property is known as the donee. It is permissible to make conditional gift of property also but the condition must not be repugnant to any of the provisions of section 10 to 34 of the Act.
Existence of Property
For a gift , it is necessary that the property must be in existence at the time of making the gift, although its conveyance may take place either in present or in future. A gift of a future property is void ( Sec 124) A gift comprising of both the existing and future property , is void as to the future proerty.
In
coercion, the donor is forced to execute a gift deed by threat of committing any act punishable by the IPC. Example : Where a gift deed was executed by a lady and her son under the threat of her husband that he will commit suicide and they will not gift their property to his brother , the gift was held to be not a valid gift.
(i)
(ii)
The
gift deed must be without consideration. The word consideration has been defined in section 2(d) of the Indian Contract Act, 1872.
Acceptance by donee
Acceptance of the gift by the donee is necessary. In certain circumstances, the donee , he may refuse to accept the gift. : Where the gift is onerous or non- beneficial to the donee, he may refuse to accept it. Onerous gift is a gift of such a property which is burdened with liability like liability of tax or revenue etc. which exceed the market value of the property.
Example
Acceptance
of the gift may be express or implied. Where the donee accepts the title-deeds of the property gifted, it is implied acceptance of gift. Where the donee is incompetent to contract i.e., he is minor or of unsound mind, the gift must be accepted on his behalf by a competent person.
Lakhwinder singh Vs. Paramjit Kaur, 2003 (4) RCR (Civil) 26 P & H
Transfer
by minor is not valid because he is not considered to be competent to enter in to a contract. Therefore , the transfer of property of the minor without following the procedure provided for that purpose by the Guardian & Ward Act, 1870 would not transfer any title to its vendee.
In
case the gift is accepted by a guardian on behalf of the minor word, the ward may on attaining majority avoid the gift or accept it.
Where
the gift is made to a juristic person , the gift must be accepted by a competent authority representing such a legal person.
of Transfer
Immovable Properties
Gift of immovable properties, corporeal or incorporeal, of value less than Rs. 100 or more, must be signed by the donor or on his behalf someone else must have signed it, attested by at least two witnesses and must also be registered.
Where
the donee has taken possession of the gifted immovable property without a registered gift deed, he would not be allowed to protest his possession under section 53A of this Act.
Section
123 provides that a gift of immovable property can not pass any title to the donee if it is not registered.
Motilal Jain Vs. Prakash Bharatitya AIR 2007 NOC 377 MP A dedication of his property by a Hindu for religious or charitable purposes was held to be neither a gift nor the creation of a Trust. A religious endowment does not create a title in the property in the strict legal sense. Such dedication does not require registration.
properties .
They
may be transferred by an instrument in writing signed by the transferor ( in the case of gift by the donor) or his duly authorised agent ( Section 130) In the case of actionable claims registration and delivery of possession is not necessary.
(V) Gift of Idol Mannu Lal V. Radha Kishenji, 36 IC 989 (All). Debisaran v. Nandlal, AIR 1929 Pat 591 There is a conflict of opinion among the courts regarding the mode of effecting gifts to an idol. Allahabad and Patna High Courts are of the opinion that gift to an idol must be made through a registered document. Where as Madras High Court Narsimhaswami V. Venkatalingam, AIR 1927 Mad 636 Gift to an idol is outside the scope of this Act.
Gifts The
(i) (ii) (iii)
essential requirements of a valid gift under Mohammedan Law are as follows : A declaration of gift by the donor. Acceptance of the gift by the donee , and Delivery of possession, if possible.
The provisions of Section 123 do not apply under Mohammedan Law, and therefore , a registered instrument is not necessary to validate a gift by a Mohammedan of an immovable property.
Registration
In the case of gift of immovable property, registration is compulsory but it is not necessary that it must be registered by the donor himself. Once the deed of gift is delivered to the donee, even before its registration gift becomes irrevocable. Once the deed is executed and the gift is accepted during the life time of the donor , the deed may be registered even after the death of the donor.
cannot be gifted.
A
gift of a property not in existence is a promise to be performed in future and since it is without consideration, it is void and unfoceable.
Gift may be made to two or more persons jointly. For the validity of the gift it is necessary that it must be accepted by all the donees. Where one of the several donees does not accept the gift, the gift is void only for his part of interest which he would have taken, had he accepted the gift. Where the donee is unable to accept due to his incompetency, his guardian must accept the gift on his behalf.
Example : A gift is made to four persons jointly A,B,C and D by a person named X, without specifying their shares in the gift. Each will be entitled to (one-fourth) share in the gifted property. Suppose D does not accept his share of gift, then his share will revert back to donor X. It will not be added to the share of other donees.
where the gift is made to two persons jointly with the right of survivorship, then, upon the death of one donee the surviving donee will take the whole gift.
A Gift can be made subject to certain conditions. It is necessary that these conditions must be valid conditions according to the provisions of this Act.
Thakur Raghunath ji Maharaj V. Ramesh Chandra AIR 2001 SC 2340 Where an unconditional gift deed and an agreement between the donor and donee were executed on the same day, it was held that the condition prescribed in the agreement would attach to the gift as the gift deed and the agreement formed part of the same transaction.
gift is once made is irrevocable , except in the following two cases provided by this sections : (1)
(2)
A gift is revocable if the donor and the donee have agreed that on the happening of a specified event ( Non depending upon the will of the donor), the gift should be suspended or revoked. A gift may also be revoked in any of the case (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Where the donor made gift or immovable property in favour of donee in lieu of services to be provided to her by the donee and subsequently after 3 months another agreement was executed that in case the donee failed to maintain the donor the gift would be revoked It was held that the deed of gift and agreement would not form part of the same transaction and could not be read together and given effeect to.
Thakur
Raghunath ji Maharaj V. Ramesh Chandra (2001) 5 SCC 18 The property was gifted for a specific charitable purpose . The condition attached was that if the college building was not constructed within six months, the donor would be entitled to the property. The condition was held to be permissible. The donee remained as a trustee under fiduciary relationship with the donor. The donor was allowed to claim back the property on breach of the condition mentioned in the agreement executed along with the gift deed . The donors suit for possession of the land was maintainable.
Revocation by Rescission
Kinds of Gifts
Void Gifts
Onerous
gifts
Void Gifts
The following are included under the category of void gifts (a) Gifts depending on unlawful purposes ( Sec 6) (b) Gifts made upon a condition , the fulfillment of which is impossible or forbidden by law. ( Sec. 6) (c) Gifts by a person incompetent to contract (d) Where the donee of the gift dies before acceptance (e) A gift comprising both the existing and future property is void as the future property.
This section is based on the maxim qui sentit commodum sentire debetet onus which means that he who receives advantage must
Where as a gifts 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.
Essential
(1) (2) (3) (4)
Elements : -
The gift must be in the form of a single transfer, To the same person Of several things ( properties) Of such thing only one is burdened with obligation and others are not.
Example
A shares in X, prosperous joint stock company , and also shares in Y, a joint stock company in difficulties. Heavy call are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in y. He cannot take the shares in X.
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 on of them and refuse the others , although the Former may be beneficial and the latter onerous. Thus , if a gift is made in the form of two or more independent gifts to the same person, the donee may accept the beneficial one and reject the onerous property. Here the gifts are separate and do not form the part of the same transaction. The donee is not bound to accept both the gift.
Disqualified Donee
Section 127 provides that a donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if after becoming competent to contract and being aware of the obligation , he retains the property given, he becomes so bound.
Universal donee is such a person who gets the whole property of the donor under a gift. Both movable as well as immovable properties. English law does not recognise the concept of universal donee. Universal donee is liable personally for all the debts due and liabilities by the donor at the time of the gift to the extent of the property comprised therein. His liability is only to the extent of the property comprised in the gift.
Equitable Principle : one who gets certain benefits under a transaction must bear the burden also. Object : to protect the interest of the creditors of the donor.
Andra Pradesh High Court, the provisions of section 128 are applicable to Muslims also in the absence of any rule of Muslim law regarding the liability of a universal donee.