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"Gift" is the transfer of 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 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 acceptance, the gift
is void.
The conception of the term "gift" as used In the Transfer of
Property Act is somewhat different from the use in Mohammedan law.
In the Mohammedan law a gift is a transfer of property or right by
one person to another in accordance with the provisions given in
the Mohammedan law and includes-
a) A hiba, an immediate and unconditional transfer of the
ownership of some property or of some right, without any
consideration or with some return (ewaz); and
b) An ariat, the grant of some limited interest in respect of the
use or usufruct of some property or right.
Where a gift of any property or right is made without
consideration with the object of acquiring religious merit, it is
called sadaqah.
The terms "hiba" and "gift" are often indiscriminately used but
the terms "hiba" is only one of the kinds of transactions which
are covered by the general term "gift". A hiba is a transfer
without consideration. A gift by a Muslim in favour of his
co-religionist must be under the Mohammedan Law. A gift is not a
contract (though in Muslim law it is called a contract) but the
principle may be applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a
giving or taking. The giving or taking are two contemporaneous,
reciprocal acts, which constitute a gift. Section 122 of the Act
postulates that a gift is a transfer of certain existing movable
or immovable property made voluntary and without consideration by
one person called the donor, to another, called a donee and
accepted by or on behalf of the donee. The essential elements of a
gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.
The concept of gift is diametrically opposed to any presence of
consideration or compensation.
In order to constitute a valid gift, the pivotal requirement is
acceptance thereof. No particular mode of acceptance is required
and the circumstances throw light on that aspect. A transaction of
gift in order to be complete must be accepted by the donee during
the lifetime of the donor. Factum of acceptance can be established
by different circumstances such as donee taking a property or
being in possession of deed of gift alone. If a document of gift
after its execution or registration in favour of donee is handed
over to him by the donor whom he accepts, it amounts to a valid
acceptance of gift in law. The specific recital in the deed that
possession is given raises a presumption of acceptance.
Conception Of Property
English Law.-In order to appreciate the questions of conditions in
gifts (and also in bequests) it is necessary to first note the
different conceptions of property in English and Mohammedan laws.
The English law as to rights in property is classified by a
division on the basis of immoveable and moveable (real and
personal) property. Rights in land described as "estate in land"
do not always imply only absolute ownership but also rights which
fall short of it and are limited to the life of the grantee or
otherwise limited in respect of time and duration or use property
in all these various forms are described as "estate". Ownership of
land is thus split up into estates distinguished in point of
quality (e.g., into legal and equitable estates) and in point of
duration (e.g., estates in fee simple, in tail, for life or in
remainder.'
Mohammedan Law.-In general, Muslim law draws no distinction
between real and personal property, and there is no authoritative
work on Muslim law, which affirms that Muslim law recognises the
splitting up of ownership of land into estates. What Muslim law
does recognize and insist upon, is the distinction between the
corpus of the property itself (ayn) and the usufruct in the
property (manqft). Over the corpus of property the law recognises
only absolute dominion, heritable and unrestricted in point of
time; and where a gift of the corpus seeks to impose a condition
inconsistent with such absolute dominion the condition is rejected
as repugnant; but interests limited in point of time can be
created in the usufruct of the property and the dominion over the
corpus takes effect subject to any such limited interests. Limited
interests in respect of property are not identical with the
incidents of estates under the English law. Under the Mohammedan
law they are only usufructuary interest (and not rights of
ownership of any kind).
Thus, in English law a person having interest in immoveable
property for limited periods of time is said to be the "owner" of
the property during those periods. The usufruct is also a part of
the corpus. On the other hand, in Muslim law, a person can be said
to be an "owner" only if he has full and absolute ownership.
Ownership for a limited period is not contemplated at all. If the
use or enjoyment of property is granted to a person for life or
other limited period such person cannot be said to be an "owner"
during that period. The English law thus recognises ownership of
the land limited in duration while Muslim law admits only
ownership unlimited in duration but recognises interests of
limited duration in the use of property.
There is no difference between the several schools of Muslim law
in their fundamental conception of property and ownership. A
limited interest takes effect out of the usufruct under any of the
schools.
The Donor
Doner's Qualification
The donor is the person who gives. Any person who is sui juris can
make a gift of his property. A minor, being incompetent to
contract is incompetent to transfer, and a gift by the minor would
therefore be void trustees cannot make a gift out of trust
property unless authorized by the terms of the contract.
On behalf of a minor, a natural guardian can accept a gift
containing a condition that the person nominated in the gift deed
shall act as a manager of the gifted property. Such acceptance
would amount to recognition by the natural guardian of the
nominated person as the manager or the agent of minor for the
purpose of such property.
In Mohammedan law majority is to be determined according to Sec. 3
of the Majority Act, and not by Mohammedan law.
The age of majority as regards matters other than marriage, dower,
divorce and adoption, is now regulated by the Indian Majority Act
IX of 1875. Section 3 of the Act declares that a person shall be
deemed to have attained majority when he shall have completed the
age of eighteen years. In the case, however if a minor of whose
person or property a guardian has been appointed, or of whose
property the superintendence has been assumed by a Court of Wards,
the Act provides that the age of majority shall be deemed to have
been attained on the minor completing the age of twenty-one years.
Soundness of mind and majority are the only qualifications
required for making a gift. A gift to be valid must be made by a
person with his free consent and not under compulsion. The donor
must not be insane but a mere weakness of the intellect would not
be sufficient to invalidate the gift if the donor was able to
apprehend the transaction.
Donor's powers are unrestricted in Mohammedan law-
A man may lawfully make a gift of his property to another during
his lifetime, or he may give it away to some one after his death
by will. The first is called a disposition inter vivos and the
second a testamentary disposition. Mohammedan law permits both
kinds of dispositions, but while a disposition inter vivos is
unfettered as to quantum and testamentary disposition is limited
to one-third of the net estate. Mohammedan law allows a man to
give away the whole of his property during his lifetime, but only
one-third of it can be bequeathed by will from that of a will a
gift may be made to a stranger wholly excluding the heirs.
Pardanashin Lady Free consent means, the consent should not have
been obtained by fraud, misrepresentation or undue influence. An
insolvent donor is not competent to make a gift.
The Donee
The donee is the person who accepts the gift, by or on behalf of a
person who is not competent to contract. A minor therefore may be
a donee; but if the gift is onerous, the obligation cannot bee
enforced against him while he is a minor. But when he attains
majority he must either accept the burden or return the gift.
The words 'accepted by or on behalf of the donee show that the
donee may be a person unable to express acceptance. A gift can be
made to a child en ventre sa mere and could be accepted on its
behalf.
The donee must be an ascertainable person and be a donee under
this section; nor can a gift be made to an unregistered society.
A gift to two or more persons may be a gift to them as joint
tenants or as tenants in common. The presumption of English law in
favour of joint tenancy does not apply to a Hindu gift, and in a
Hindu gift the donees are presumed to take as tenants in common It
is necessary in Mohammedan law that the donee should accept a hiba
and possession must be delivered in the case of hiba. As hiba is
immediate and absolute transfer of ownership a hiba in favour of a
person who was not in existence is invalid. It is necessary that
the donee should accept a hiba and possession must be delivered in
the case of hiba. As hiba is immediate and absolute transfer of
ownership a hiba in favour of a person who was not in existence is
invalid.
Gifts of Usufruct(Ariat) to unborn persons -a hiba stands
on a different footing from a gift of a limited interest in
usufruct a gift of future usufruct to unborn persons is valid
provided that the donee is in being at the time when interest
opens out for heirs
Child in the womb - a hiba in favour of a child in the womb
is valid if the child is born within six months from the date of
the hiba because in that case it is presumed that the child
actually existed as a distinct entity in the womb of his mother.
Juristic persons - a gift to juristic persons or any other
institution is valid. So a gift to corporate units, e.g. a tauazhi
(consisting of a mother and of all her children and not
descendants in the female line governed by Marumakkathayam law)
are valid. Such a gift will be valid as being one for the whole
body.
It has been held that a mosque is recognized by the Mohammedan
jurist as a juristic person, and that a valid gift can be made in
favour of a mosque.
Gifts to Non-Muslims - a gift may be made to a non-Muslim but in
such a case the property will, after the completion of the gift,
be subject to the personal law of the donee and not that of donor.
Subject Of Gift
The subject matter of the gift must be certain existing movable or
immovable property. It may be land, goods, or actionable claims.
It must be transferable under s 6. But it cannot be future
property. A gift of a right of management is valid; but a gift of
future revenue of a village is invalid. These cases were decided
under Hindu and Mohammedan law respectively but they illustrate
the principle. In a Calcutta case, it was said that the release of
a debt is not a gift, as a gift must be of tangible property. It
is submitted that the release of a debt is not a gift as it does
not involve a transfer of property but is merely a renunciation of
a right of action. It is quite clear that an actionable claim such
as a policy of insurance may be the subject of a gift It is
submitted that in a deed of gift the meaning of the word 'money'
should not be restricted by any hard and fast rule but should be
interpreted having regard to the context properly construed in the
light of all the relevant facts. Therefore in order to constitute
a valid gift, there must be an existing property. In Mohammedan
law any property or right which has some legal value may be the
subject of a gift.
Conditions For Valid Gift Under Section 122 Of The Transfer Of
Property
There was a divergence of view between the two schools of Hindu
law as to the necessity of acceptance of the gift by the donee,
Dayabhaga holding that it was not necessary but Mistakshara
holding the contrary. This section has modified the indigenous
Dayabhaga law. A transfer of a stock to the name of the donee
vests the property in him subject to his right to repudiate the
gift, even though he be unaware of the transfer And this is so
even though the gift be onerous. The mutation entries of the
property alleged to be gifted does not conveyor extinguish any
title and those entries are relevant only for the purpose of
collection of land revenue.
Gift defined under the Transfer of Property Act is as given below-
122. "Gift" defined. - "Gift" is the transfer of 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 or on behalf of the
donee.
It is required to be a voluntary transfer of property to another
made gratuitously and without consideration. This section applies
to those gifts that are gifts inter vivos or an absolute gift.
Property under the above section can be both moveable or
immoveable but however have to be tangible in nature. In order to
constitute a valid gift, there must be an existing property as
already earlier elaborated.
Voluntarily - In this section the word 'voluntarily' bears
its ordinary popular meaning. It denoting the exercise of the
unfettered free will, and not its technical meaning of 'without
consideration'. When a gift is made, it must satisfactorily appear
that the donor knew what he was doing and understood the contents
of the instrument and its effect, and also that undue influence or
pressure was not exercised upon clear intention to make an
out-and-out gift, but the intention has failed for want of
transfer or any other cause, the courts will not convert what was
meant to be an out-and-out gift into a trust, and the donor will
not be deemed a trustee of the property for the intended donee.
The gift will fail. Also where the husband deposited certain
ornaments with a bank for safe custody in the joint names of
himself and his wife, with direction to be delivered to be either
or survivor, it did not amount to a gift, as the husband retained
dominion over the property. Where a person keeps money to fixed
deposit in the name of his niece, brought up and given in marriage
by him, there is an inference of gift in favour of the niece.
Where the motive behind the deed of gift was unequivocal to give
the transferee a title which would act as a safeguard against any
claim for pre-emption, the transaction for that reason cannot be
called a sale. Similarly where a person settles an annuity upon
his alleged wife, the settlement cannot be construed to be a
contract for consideration of love and affection, but is a gift
pure and simple.
Donative intention (motive) and consideration-
A gift is a transfer. But it does not contain any element of
consideration. Complete absence of monetary consideration is the
main, hallmark, which distinguishes a gift from a grant or any
other transactions for valuable or adequate consideration. Where
there is any equivalent of benefit measured in terms of money in
respect of a gift, the transaction ceases to be a gift. Love,
affection, spiritual benefit and many other factors may enter in
the intention of the donor to make a gift but these financial
considerations cannot be called or held to be legal considerations
as understood by law. Legal consideration is one recognised or
permitted by law as valid and lawful. The term is also sometimes
used as equivalent to a 'good' or 'sufficient' consideration. Love
and affection is a sufficient consideration when a gift is
contemplated, but it is not considered as a 'valuable'
consideration when such is required.
It is one of the essential requirements of a gift that it should
be made by the donor 'without consideration'. The word
'consideration' has not been defined in the T.P. Act, but means
the same as in the Contract Act excluding natural love and
affection. If not, and if the transfer involved consideration, the
transaction would amount to a sale within the meaning of sec. 54
or to an exchange within the meaning of sec. 118. The essence of a
gift inter vivos must be without 'consideration' of the nature
defined in sec. 2(d) of the Contract Act.
Where a very old man, with weak eyesight, sues for cancellation of
the deed of gift executed by him in favour of his son alleging
that it was not his voluntarily act. The circumstance also
indicated that the donee was in a position to dominate the will of
the donor. Under such circumstance the onus shifts on to the donee
to prove that the gift was made voluntarily.
In another case of the Orissa High court, Gift deed is alleged to
have been taken from a pardanashin lady by practicising fraud.
When the plaintiff is an illiterate or pardanashin lady, in spite
of the fact that she is unable to establish her case of practising
fraud, the onus still remains uponi the donee to establish
conclusively that the document was executed after it was read over
and explained to her and after she understood the contents
thereof.
'Without consideration' - A gift is a transfer without
consideration and if there is any consideration in any shape,
there is no gift. The word 'consideration' means valuable
consideration, i.e. consideration either of money or money's
worth. A gift in lieu of conferring spiritual benefit to the donor
is not a transfer with consideration, but is to be treated as a
gift.
Where a mother gifts property to her only daughter, who promises
to maintain the former throughout her life, the promise is not
enforceable in law because the gift has to be for natural love and
affection and not for any consideration . A minor may be a donee
and the minor's natural guardian can accept the gift on behalf of
the minor. But if the gift is onerous, the obligations cannot be
enforced against the minor during his minority. But on his
attaining majority, the minor must accept the burden or return the
gift. The donee can even be a child en ventre sa mere (in its
mother's womb).
When Acceptance to be made. - Such acceptance must be made
during the lifetime of the donor and while he is still capable of
giving. If the donee dies before acceptance, the gift is void.
Acceptance. - The gift must be accepted by the donee or by
someone on his behalf. An offer without acceptance by the donee
cannot complete the gift. Acceptance may be inferred from acts
prior to the execution of the deed of gift. Mere silence may
sometimes indicate acceptance provided the donee knows about the
gift, slighest evidence of acceptance being sufficient.
Even when a gift is made by a registered instrument, the same has
to be accepted by or on behalf of the donee to make it complete,
failing which the gift will be bad, because it so provides in sec.
122. What the law requires is acceptance of the gift after its
execution, though the deed may not be registered. Anterior
negotiations or talks about the gift would not amount to
acceptance. Person accepting gift on behalf of the minors appended
his thumb-impression on the deed in token of acceptance. It was
held that the gift was complete. Acceptance must be essentially
made before the death of the donor. There must be something shown
to indicate an acceptance. The acceptance may be signified by an
overt act such as the actual taking of possession of the property,
or such acts by the donee as would in law amount to taking
possession of the property where the property is not capable of
physical possession. Acceptance may be implied, but the rule of
implied acceptance ought not to be extended so far as to hold that
the acceptance will be presumed unless dissent is shown.
Acceptance will be presumed if there is possession, actual or on
the parties where some right, interest, profit or benefit accrues
to one party, or some forbearance, detriment, loss, or
responsibility is given, suffered or undertaken by the other.
There is nothing in section122 of the transfer of property Act to
show that the acceptance under this section should be express. The
acceptance may be inferred, and it may be proved by the donee's
possession of the property, or even by the donee's possession of
the deed of gift.
Delivery of possession of the gifted property is not absolute
requirement, for the completeness or the validity of the gift as
found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight
evidence is sufficient for establishing the fact of acceptance by
the donee. When it is shown that the donee had knowledge of the
gift, it is only normal to assume that the donee had accepted the
gift, because the acceptance would only promote his own interest.
Mere silence may sometimes be indicative of acceptance, provided
it is shown that the donee knew about the gift. No express
acceptance is necessary for completing a gift.
While mere possession by or on behalf of, a donee may amount to
acceptance, mere possession cannot be treated as evidence of
acceptance where the subject matter is jointly enjoyed by the
donor and the donee.
A gift of immovable property can only be made by a registered
instrument. A deed cannot be dispensed with even for a property of
small value, as in the case of a sale. And as a further
precaution, attestation by two witnesses is required. This
provision excludes every other mode of transfer and even if the
intended donee is put in possession, a gift of immovable property
is invalid without a registered instrument.
Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are
required to exist:
(a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf
of the donee, and
(c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of
any of the above three essential conditions the gift renders
itself as invalid. Another characteristic of Mohammedan law is
that writing is not essential to the validity of a gift either of
movable or immovable property.
In another case the Patna High Court held that under the
Mohammedan Law for validity of the deed of gift four elements are
necessary
¢ declaration of gift by the donor
¢ relinquishment by donor of-ownership-and dominion
¢ acceptance of the gift by donee, and
¢ delivery of possession of the property by donor.
Under the Mohammedan Law it is essential as regards gift that the
donor should divest himself completely of all the ownership and
dominion over the subject of the gift. It is essential to the
validity of the gift that there should be delivery of such
possession as the subject of the gift is susceptible of. According
to Muslim law it is not necessary that there should be deed of
gift in order to make it a valid gift, but of course, if there is
a deed it should be registered.
Acceptance- Acceptance may be made expressly or impliedly
by conduct, but acceptance would be unnecessary in a case where
the gift is made by a guardian to his ward. Mohammedan law does
not dispense with the necessity for acceptance of the gift even in
cases where the donees are minors. If the donees are minors it may
be that the evidence of acceptance will have to be approached with
reference to that fact, but that does not mean that no proof of
evidence of acceptance is necessary in the case of a gift in
favour of minor.' A minor who has attained discretion may accept
the gift even after it has been rejected. He may also refuse to
accept the gift.
Delivery of possession - Under the Mohammedan law it is not
necessary that there must be actual delivery of possession to make
a gift valid. It is a fundamental rule of Mohammedan law as
regards gifts,that "the donor should divest himself completely of
all ownership and dominion over the subject of the gift. It is
essential to the validity of a gift that there- should be a
delivery of such possession as the subject of the gift is
susceptible of what delivery the property is capable of and
whether such delivery as the property is capable of has been given
would depend upon the particular facts in each case. A gift with a
reservation of possession by the donor during his life was held to
be void in K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan, One
thing is clear, that by reserving undisturbed his right to be in
possession and enjoyment, the donor does not divest himself
completely of all dominion over the properties, though in sense,
he purports to associate the donees with himself, nor can such
associating the donees in the matter of possession and enjoyment
with him be deemed to be delivery of such possession, if all, as
the properties are susceptible of. It is not correct to say that a
stipulation that the donor and the donees shall be in joint
possession, satisfies the requirement of delivery of possession in
a gift under the Mohammedan law.
Even where the donee resides with the donor in the property
although no physical departure by the donor or formal entry by the
donee, is necessary, the gift has to be completed by the donor
indicating a clear intention of his part to transfer possession
and to divest himself of all control over the subject of the
gift.' Among the conditions required for the validity of a gift
under Mohammedan law the most essential is that of delivery of
possession, actual or constructive, with the permission of the
donor, without which a gift cannot be valid.
Possession, Actual and Constructive - It should, however,
is noted that while the delivery of possession is an essential
condition for the validity of the gift, it is not necessary that
in every case there should be a physical delivery of possession.
Possession the delivery of which would complete a gift may be
either actual or constructive. All that is necessary is that the
donor should divest himself completely of all ownership and
dominion over the subject of the gift. The relinquishment of
control is thus necessary to complete the gift. The real test of
the delivery of possession is to see whether the donor or donee
reaps the benefit; if the former possession is not transferred and
if the latter, it is transferred, and the gift is complete if the
donee is permitted directly or indirectly to receive the benefit.
Constructive possession of the subject of the gift is therefore
sufficient.
Oral Gift of an Immoveable Property-
In view of sec. 123 of Transfer of Property Act, a gift of
immovable property, which is not registered, is bad in law and
cannot pass any title to the donee. Any oral gift of immovable
property cannot be made in view of the provisions of sec. 123.
Mere delivery of possession without a written instrument cannot
confer any title
Under the Muslim law, an oral gift is permissible. However, in
order to constitute a valid gift, the donor should divest himself
completely of all ownership and dominion over the subject of gift.
It is also essential for the donee not only to prove that the
donor had made an oral gift in his favour, but it is also
essential for him to prove that he accepted the said gift and
delivery of possession of the gifted property had also been
effected.
Although the Hindu law requires delivery of possession to complete
a gift of immovable property, that law has been abrogated by sec.
123 of this Act. This section clearly seems to have the effect of
rendering unnecessary the delivery of possession, substituting, as
it does, registration for delivery of possession.
Since delivery of possession is not necessary, it follows that if
a Hindu executes a gift in praesenti of three villages by means of
a duly registered instrument but reserves possession of the
villages in order to enjoy the usufruct during his lifetime, and
at the same time provides that he would not alienate the property
to anybody else, the gift is perfectly valid.
Under the Mohammedan law, the essentials of a gift are:
declaration of gift by the donor, an acceptance of the gift by the
donee, and delivery of possession such as is the subject of the
gift susceptible of. This rule of Mohammedan law is unaffected by
the provisions of sec. 123, Transfer of property Act and,
consequently, a registered instrument is not necessary to validate
a gift of immovable property.
Possession means not always actual physical possession but
possession which the property is capable of being given. So far as
declaration is concerned, it must be shown that the donor either
in the "presence of witnesses or otherwise made a public statement
that he gifted the property in favour of the donee and that he
divested himself of the ownership of the property by delivering
possession to the donee. A Mohammedan can make oral gift of his
immovable gift subject to these conditions.
Delivery of possession being essential to the validity of a gift,
it follows that if there is no delivery of possession, there is no
valid gift.
Under the Mohammedan law, a valid gift can be affected by delivery
of possession, and if there is delivery of possession, the mere
fact that there is also an unregistered deed of gift does not make
the gift invalid.
A Comparitive Of Gift In The Transfer Of Property Act And In
Mohammedan Law Property- Gifts as given under the transfer of
property Act deals only with gifts of tangible properly; and so a
release of a security without consideration does not fall under
this section; because, though the release of the security may be
said to be a gift, still the gift is not one of tangible property.
When the certificate of shares together with a blank transfer form
signed by the registered shareholder is handed over to the buyer
by the registered holder, the buyer acquires not the full property
in the shares but the title to get on the register of the company.
This title to get on the register, though a chose in action,
constitutes goods within the meaning of the Sale of Goods Act, and
the gift of such title to get on the register is complete when a
deed of gift duly attested and registered, together with the
shares and blank transfer form signed by the donor, is handed over
to the donee.
Hiba Of Corporeal And Incorporeal Property - it is not
necessary that a hiba must be of some corporeal or tangible
property, it may be made not only of corporeal property but also
of incorporeal property. Thus, a hiba may be made of actionable
claims or chooses-in-action, e.g. debts,negotiable instruments or
Government promissory notes.
Gift of a debt -the gift of a debt to the debtor is lawful
both by analogy (qiyas) and liberal interpretation (istehsan). A
gift takes effect in two ways, by transfer of right of property (tamlik)
or by cancellation or discharge (iskat). The gift of a debt to the
debtor comes under the latter category. If the creditor releases
the principal debtor from debt, both the debtor and surety are
released. The release of a debt may also be made in favour of the
heirs of the debtor if he dies.
Existence Of Property Necessary- In order to constitute a
valid gift, there must be an existing property. In other words,
the subject-matter of the gift must be certain existing moveable
or immovable property like land, goods or actionable claims. It
must be transferable under sec. 6. In case of gift of certain
amount by entries in the books of account by credit and debit, the
sums should be available on the date of gift in the account of the
firm whose accounts are said to be credited or debited. In the
case of banking companies or other firms and companies who have
overdraft facilities, even if the sums are not in credit of the
donor and are not with such companies or firms, gifts might be
possible by adjustment of the book entries. But in the case of
non-banking companies or firms, if these companies or firms do not
have overdraft facilities, it is not possible to make a valid gift
if sums or funds are not available. A donation cannot be made of
anything to be in future (e.g. future revenues of a property).
Existence
Of Property Necessary Also In Case Of Hiba-
A hiba is an out-and-out transfer of some determinate thing or an
incorporeal right, it is necessary that such thing or right must
be in existence and can be transferred immediately. Also in the
case of a gift of usufruct(Ariat) produce (Manqfi) refers to
rights which accrue from day to day in future. Such produce or use
of a thing becomes property particle by particle as it is brought
into being. The manqfi may thus be transferred by the donor during
his lifetime by gift or by bequest and be the subject of gift even
though they are not in existence at the time of the gift.
Equity of
Redemption can be subject of a valid gift-where the property
gifted is subject to a usurfructory mortgage, what is gifted is
merely the equity of redemption and not physical possession of the
property itself.
Oral Gift
Of Immoveable Property - In view of sec. 123, a gift of
immovable property which is not registered is bad in law and
cannot pass any title to the donee. Any oral gift of immovable
property cannot be made in view of the provisions of sec. 123.
Mere delivery of possession without a written instrument cannot
confer any. Under the Muslim law, an oral gift is permissible.
However, in order to constitute a valid gift, the donor should
divest himself completely of all ownership and dominion over the
subject of gift. It is also essential for the donee not only to
prove that the donor had made an oral gift in his favour, but it
is also essential for him to prove that he accepted the said gift
and delivery of possession of the gifted property had also been.
When Gift May
Be Suspended Or Revoked
Section 126 of the Transfer of Property provides for conditions
where a gift may be revoked.the following are those conditions-
(1) That the donor and donee must have agreed that the gift shall
be suspended or revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the donor's
will;
(3) the donor and donee must have agreed to the condition at the
time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should not
be repugnant to the estate created under the gift. Section 126 is
controlled by sec. 10. As such, a clause in the gift deed totally
prohibiting alienation is void in view of the provisions contained
in sec. 10. A gift, which was not based on fraud, undue influence
or misrepresentation nor was an onerous one, cannot be cancelled
unilaterally. Such a gift deed can be cancelled only by resorting
to legal remedy in a competent court of law.
A Mohammedan on the other hand can revoke a gift even after
delivery of possession except in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to
her husband;
(2) when the donee is related to the donor within the prohibited
degrees;
(3) when the gift is Sadaka (i.e. made to a charity or for any
religious
purpose).
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's possession
by sale, gift or otherwise;
(6) when the thing given is lost or destroyed;
(7) when the thing given has increased in value, whatever be the
cause of the increase;
(8) when the thing given is so changed that it cannot be
identified, as when wheat is converted into flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of
the donor, whether he has or has not reserved to himself the power
to revoke it, but the revocation must be by a decree of court.
Onerous
Gift
'Onerous gift' is a gift made subject to certain charges imposed
by the donor on the donee. The principle behind this is that he
who accepts the benefit of a transaction must also accept the
burden of the same. This section, being an embodiment of a rule of
equity, applies equally to Hindus and Mahomedans. For acceptance
of an onerous gift, acceptance of the gift itself is sufficient;
there need not be any separate and express acceptance of the
onerous condition also at the same time. The acceptance of the
gift will carry with it the acceptance of the onerous condition
also, even though at the time of the gift the donee was not aware
of such condition, specially where the onerous condition is of a
trifling nature (payment of Rs. 5 as monthly maintenance to a
certain person for life). 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
The essential condition to constitute a universal donee is that
the gift must consist of the donor's whole property. If any
portion of the donor's property, no matter whether it is moveable
or immovable, is excluded from the operation of the gift or the
endowment, the donee is not a universal donee. This concept is
embodied in section 128 of the Transfer of property Act. Where a
Mahomedan made a gift of the whole of his estate to his son and
directed him to pay his debts, the son was a universal donee and
he was liable to pay all debts of the donor. There is no rule of
Mahomedan law which conflicts with the provisions of this section.
Conclusion
The conception of the term gift and subject matter of gift has
been an age old and traditional issue which has developed into a
distinct facet in property law. Different aspects related to gift
in property act and its distinction with the Mohammedan law and
its implications has been the major subject matter of this
article. In considering the law of gifts, it is to be remembered
that the English word 'gift' is generic and must not be confused
with the technical term of Islamic law, hiba. The concept of hiba
and the term "gift as used in the transfer of property act, are
different. As we have seen in the project that Under Mohammedan
law, to be a valid gift, three essentials are required to exist:
(a) declaration of gift by the donor (b) an acceptance of the
gift, express or implied, by or on behalf of the donee, and (c)
delivery of possession of the subject of gift. The English law as
to rights in property is classified by a division on the basis of
immoveable and moveable (real and personal) property. The
essential elements of a gift are (a) The absence of consideration;
(b) the donor; (c) the donee ;(d) the subject-matter; (e) the
transfer; and the acceptance Thus this striking difference between
the two laws relating to gift forms the base of this project in
understanding its underlying implications.
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Authored by kruthika rao and can be reached at
:
kruthika28@yahoo.com
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