Gift under the Transfer of Property Act 1882

Introduction -

   A gift is a voluntary transfer of property by one party to another. Chapter III of the Transfer of Property Act 1882 deals with the provision of Gift.  

1) Meaning and Definition of Gift - 

     According to Section 122 of the Transfer of Property Act 1882 “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. 

Acceptance when to be made - Such acceptance must be made during the lifetime of the donor and while he is till capable of giving, If the donee dies before acceptance, the gift is void. 

2) Transfer how effected - 

    As per Section 123 of the Said Act, For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. 

3) Gift of existing and future property -

   According to Section 124 of the Transfer of Property Act 1882, A gift comprising both existing and future property is void as to the latter. 

4) Gift to several, of whom one does not accept - 

   According to Section 125 of the said Act, A gift of a thing to two or more donees, of whom one does not accept it is void as to the interest which he would have taken had he accepted

5) When gift may be suspended or revoked.

    As per Section 126 of the Said Act,  The donor and done may agree that on the happening of any specified event which does not depend on the will of the donor it shall be suspended or revoked, but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be. A gift also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. 

Illustrations - 

   (a) a gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B

and his descendants dies before A, B dies without descendants in A’s lifetime. A may take back the field.

   

   (b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at

pleasure Rs. 10, 000 out of the lakh. The gift holds good as to Rs. 90, 000, but is void as to Rs.10, 000,

which continues to belong to A. 

Onerous gifts. - 

       As per Section 127of the Transfer of Property Law. Where a gift 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 done can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the done is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous. 

Onerous ‘gift to a disqualified person - A done 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. 

Illustrations -

   (a) A has shares in X, a prosperous joint stock company, and also shares in Y, a joint stock company, in difficulties. Heavy calls are expected in respect of the shares in Y. A given B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X. 

   (b) A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, given to B the lease, and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not by his refusal forfeit the money. 

Universal donee - (Section 128) - 

      Subject to the provisions of section 127 of the Transfer of Property Act, 1882 where a gift consists of the donor’s whole property, the done is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. 

Saving of donations Mortis causa and Muhammadan law -  Nothing is this Chapter related to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law. 

See also... 

Essentials of a Valid Gift (Property Law)