According to Section 122 of Transfer of Property Act, 1882 Gift
defined as the transfer of certain existing moveable and 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. In short,
a gift is a transfer of moveable or immovable property to a person without any
consideration. The transfer of property act, 1882 defines 'gift' under section
It is important to be noted that the gift should be accepted by the donee
during the lifetime of the donor. It is because the donor should be able to
transfer the gift to someone else if he desires when done does not accept the
gift and if the done dies before the acceptance the gift is said to be void.
Hence, an acceptance is important from the side of the donee to make the
transfer of gift complete and that should be made by donee during the lifetime
of the donor.
Section 123 of the transfer of property act stipulates how the gift should be
transferred. It is precisely mentioned that for gifting an immovable property,
the transfer must be effected by a registered instrument which is signed by the
donor and that must be attested by a minimum of two witnesses. But movable
property can be gifted either by the aforesaid method or by the delivery of
For instance, if someone wants to gift thirty acres of land to
someone, he has to execute a gift deed in the name of the donee and get it
registered and signed by a minimum of two witnesses for making that transfer
valid. But for gifting any movable property such as a car, scooter, or gold, he
can gift it to anyone without registration by the delivery of possession. It is
important to be noted that only the existing property can be gifted.
should have right on the property at the time he executes the gift deed. In case
if he acquires right on a particular property in the future, he can gift that
property at the time when he gets that right and not before. It is mentioned
under section 124 of the transfer of property act.
The shares of those who accepted the gift won't increase by the shares of those
who refuse. When a gift is transferred to more than one person and one or more
such person doesn't accept the gift, his share won't go to those who have
accepted the gift and that will be void. For instance, a man executed a gift
deed in favor of his four sons to transfer his 40 acres of land.
He intended to
gift 10 acres for each son. However, three of his sons accepted their shares and
got 10 acres of land each. But his fourth son did not accept the gift. So the
share of his fourth son i.e, the 10 acres of land will be void as he rejected
the gift and the man can transfer the said 10 acres of land to anyone he wants
in the future. In short, just because the fourth son rejected his share that
does not mean that his share will be divided between the rest of his sons, and
their shares increases. It will return to the donor.
Section 126 stipulates when the gift can be suspended or revoked. The general
rule is that the donor can't gift anything to anyone by saving the liberty of
revoking the gift at his pleasure. But section 126 of the transfer of property
act is an exception to this general rule. In certain cases, the donor can
exercise such power. The power of revocation would be valid if the event on the
happening of which the gift can be revoked does not depend upon the will of the
For instance, A gifted 50 acres of land to B with a condition that A
shall take back the 50 acres of land if B dies before A and B agreed to it.
Here, if B dies before A, A will get his property back as the death of B does
not depend upon the will of A. But instead, if A gifted 1 lakh rupees to B and
put a condition that he shall take back ten thousand rupees from it anytime he
wants, is void and A shall get ninety thousand rupees only.
The gift of said ten
thousand is void and that continue to belong to A as if it has not been gifted
to B. Section 126 can't be read in isolation as it is controlled by section 10
of the transfer of property act which says that any stipulation completely
restraining the done from transferring the gifted property is void.
Section 127 deals with the onerous gift. It stipulates that if the gift is in
the form of a single transfer to the same person of several things of which one
is, and the other not, burdened by an obligation, the done can take nothing by
the gift unless he accepts the gift fully. For instance, A transferred thirty
acres of land, a car, and a house to B. A had mortgaged the house before such
If B wants to accept the gift, he has to accept the whole, i.e, he has
to accept the said 30 acres of land, car, and the house and he can't reject any
of those gifts as they are in a single transfer. Here, he can't accept the
thirty acres of land and car without accepting the house as those all are
transferred to B in a single transfer.
Thus, it's not a prerequisite that a gift
may always be purely beneficial but may at times be burdened with obligations.
In that instance, one cannot approbate and reprobate the same transaction which
means one cannot accept the beneficial part of the gift and rejecting the
obligatory part of the transaction. Section 127 is based on a simple principle
that one who wants the rose must not fair thorns, i.e., the donee has to elect.
Either to accept the whole gift or he cannot accept anything at all.
The section also states that if the gift is in the form of two or more separate
independent transfers of several things, the donee has the liberty to accept any
one of them or reject some gifts. For instance, if A transfers thirty acres of
land, car, and a mortgaged house in a separate and independent transfer to B,
then B has the liberty to reject any one of them if he wants and accept others.
He can accept the thirty acres of land and car without accepting the mortgaged
The section also states that if the done is a minor, he is not burdened
by any such obligation until he attains the age of majority and chooses to
retain the gift. If he chooses to retain the gift after he attains the age of
eighteen, he shall be burdened with the obligation but if he relinquishes the
gift, he shall not be liable for anything.
Section 128 deals with universal donee. It states that Universal donee is such a
person who gets the whole property of the donor under a gift. Both movable, as
well as immovable properties of the donor, are given in a gift to him. Section
128 states that when a person transfers all his properties to a person without
consideration, such donee shall be personally liable for all the debts and
liabilities of the donor.
For instance, A transfers all his moveable and
immovable properties to B without consideration. A had a debt of five lakhs
before such a transfer. Here, if B accepts the gift, B shall be personally
liable to pay five lakhs rupees to A's creditors to discharge the debt of A as
he has acquired all his properties and nothing is left to A to pay the debt.
The purpose of this section is to protect the interest of the creditors. Hence,
no one can escape from the liabilities by transferring the properties to
For a person to be a universal donee, he should get all the properties
of the donor, including moveable and immoveable properties and nothing should be
left for the donor to pay his debts. If he has any other source or property to
pay his debts, then the donee won't be universal donee and in such cases, he
shall not be personally liable to pay the debts of the donor.
The transfer of property act mentions the concept of gift, how it
should be transferred, obligations and rights of the parties, etc. It is
important to execute a gift deed in compliance with the above-mentioned
provisions as otherwise that you can't claim title to the property. The gift
should be registered compulsorily if it is an immovable property and also should
be attested by a minimum of two witnesses. The gift deed should be on stamp
paper and get registered at a sub registrar's office.
The charge of stamp paper
varies from state to state and the state government has to impose such charges.
After the donor, donee, and the witnesses are signed, the register will attest
to the gift deed. In case of any ambiguity or any adverse claims arises in the
future concerning your property, you can prove your title by producing the
registered gift deed in court.
Written By: Prime Legal Law Firm
- Transfer of property act, 1882, Allahabad law agency: S.N. SHUKLA
- Textbook on the transfer of property act: Dr. Avtar Singh, Prof(Dr)
Off Address: 39/2, 2nd floor, K G Road, Bengaluru, Karnataka-560001
Phone no: +9986386002, Email: [email protected]
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