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:
- 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.
- 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
- 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.
- Without consideration: A gift must be gratuitous i.e. without
consideration. It must be a pecuniary consideration.
- 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.
- 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:
- By registration
- 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
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:
- 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 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.
- 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.
- Transfer of Property Act, 1882: bare act, published by Universal Law
- Transfer of Property Act: by Dr. R.K. Sinha, published by Central Law
Agency (14th edition).