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Gift Under Transfer Of Property Act

Gift Under Transfer Of Property Act, 1882

Transfer of property is an act of conveyance of property between living persons, in present or future. It is defined under section 5 of the transfer of property act. Transfer of a property can be done through various ways such as Gift, Sale, Exchange, etc. and is covered under the act of 1882. Rights transferred can be absolute or partial like, in gift right transferred is an absolute right and in a lease it is partial.

Section 122- Gift

Gift is defined in section 122 of the act as:
ďthe 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.Ē

The right of Ownership is the result of the right of alienation together with the right of possession and enjoyment. So, in a common manís language, a gift is a transfer of ownership without consideration.

Essential Elements Of Gift:
  1. Parties to the gift - There must be two parties i.e. the donor and the donee. The transferor is called the donor and he must be a competent person (competency as defined in Indian Contract act 1872). The transferee is called the donee and he need not be competent to contract.
    A gift made to a minor or an insane person or even if it is made to an unborn person is valid and can be accepted by their guardian.
  2. Transfer of ownership: When a property is transferred through gift, the right created in favor of donee is an absolute right i.e. ownership of property is transferred.
  3. Subject matter: The subject matter of gift can be moveable or immovable property, but it should be in existence and the donor should have vested right in that property and not contingent.
  4. Without consideration: A gift must be gratuitous i.e. without consideration. It must be a pecuniary consideration.
  5. Voluntarily: It must be made with donorís free will and free consent without any force, coercion, undue influence. If it is not done voluntarily then the gift is void. Voluntarily done also means that donor had full knowledge about the transaction and its nature.
  6. Acceptance of gift: A gift must be accepted by the donee. Acceptance made can be expressed or implied but it must be accepted before the death of the donee and before the revocation by the donor.

Section 123: Transfer how effected

According to section 123 of the Transfer of Property Act, there are two ways to execute the transfer:

  1. By registration
  2. By delivery

The method of execution mainly depends upon the nature of the property. When it is a movable property, delivery of possession is sufficient but when it is an immovable property registration is compulsory irrespective of the valuation of the property.

Section 124: Gift of existing and future property

When any gift is made comprising of one existing and one future property, the whole gift is not said to be void. Only the part consisting of the future property will be void and the part consisting of existing property will be valid. This is because a gift is a transfer of vested right and not contingent, so what we do not have we cannot transfer it further.

Section 125: Gifting to more than one person

When a gift is done jointly to more than one person and few accept it and few do not, then the one who accepts it, for them it is a valid gift and for those who do not, it will be void.

Section 126: Revocation of gift

A revocation means annulment of a promise or decree. The revocation of a gift is always done before its acceptance. It can also be a condition by a donor that on the happening of some event and fulfillment of some condition, the gift will be suspended or revoked.

It can be done by two methods:

  1. Revocation by mutual agreements: when both the parties i.e. donor and donee agree that the gift will be suspended or revoked on happening of some event, provided that, that particular event is not dependent upon the will of the donor.
    The condition for revocation is condition subsequent and it must be valid and enforceable. Any such condition which is not valid, the gift cannot be revoked.

  2. Revocation by the recession of contract: gift deed is always preceded by an express or implied contract. As per the Indian contract act, all the essentials of a valid contract should be fulfilled. If any essential is not fulfilled, it can be revoked.
    For example, if a gift is made out of coercion, that means the donorís consent was not there and therefore it can be revoked.


References:

  1. Transfer of Property Act, 1882: bare act, published by Universal Law Publishing.
  2. Transfer of Property Act: by Dr. R.K. Sinha, published by Central Law Agency (14th edition).

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