explanation of gift

7/30/2019 Explanation of Gift

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Abstract:

The idea of gift according to theTrans fe r o f P roperty Act,1882, ru les,regulations and procedures relat ing tog ift are desc ribed he re and ho w itstransfer is mad e. Essentials eleme nts ofa g ift like d on or a nd d on ee , su bjec tm atter of a gift, free and volun taryc on sent and ac ce ptance of the g iftwi thout cons ideration . Acceptance ofthe gift is the m ost important element ofthe g i f t and acceptance must be madeduring the life time of the donor whilehe is capable for it. Transfer ofpossession is another essential elementof g if t. Registration is necessary in a llcases o f gift of immo vable property.

Introduction:

G ift is one of the im portant w ays oft ransfer o f property . So , what are theelements of gift , who can gi ft to w hom,what the legal aspects of g i f t , how the

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valid g ift is possib le , a ll these lega lissues w ill be de scribed and highlightedon the basis o f Transfer Property Act,1882 and especial ly sections related togift of transfer property act.

The idea of Gift :G ift is de fined Under Section 122 o fTrans fer o f P roperty Act, 1882 as thetrans fer o f certa in exis ting moveab leand im moveable property madevoluntar ily and without consideration,by one person called the donor, toanother, ca lled the done and acceptedby or on beh alf of the done.

A gift is a t ransfer of property withouta ny m onetary consideration by oneperson in favour of another andaccepted by h im or by a person on h isbehalf . A gift , where both the parties areMu slims is governed by the provisions ofQuranic Law , and not by the Transfer of

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Property Act as it is inconsistent withthe provisions o f this act.

There a re certa in essentia ls o f a g iftl ike donor and donee, subject matter ofa gift , interest created by the donor, giftmust be made w ith free and voluntaryc on se nt and ac ce ptance of the giftwithout c onsideration.

Under Section 122 of Transfer ofProperty Act, 1882 G ift is defined as thetrans fer o f certa in exis ting moveab leand im moveable property madevoluntar ily and without consideration,by one person called the donor, toanother, ca lled the done and acceptedby or on beh alf of the done.

A gift is a t ransfer of property withouta ny m onetary consideration by oneperson in favour of another andaccepted by h im or by a person on h isbehalf . A gift , where both the parties areMu slims is governed by the provisions of

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Quranic Law , and not by the Transfer ofProperty Act as it is inconsistent withthe provisions o f this act.

Accep tance of Gift:

The acceptance o f g ift m ust be m aded urin g the life tim e o f th e d on or a ndw hile he is still capab le of giving.I f the done dies before the acceptance,the gift is void.

It w as held that in the case of"Damodaram Pi llai vs DhanalakshmiAmmal A lias " ... on 25 M arch, 1960 ,that-

T he m ain contention of M r. G ovindSwaminathan , is that the transactionhas not been completed as there is noacceptable ev idence showing that thesettlem ent has been accepted by thesettlee during the lifetime of the settlor,as contemplated under Section 122 o fthe Transfer ofProperty Act, Mr. Govind

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Swaminathan, stressing on theimportant con dition of a gift spec ified inthe above section, v iz , the acceptanceof the gi f t by or on behal f of the doneedur ing the l i fet ime of the donor , Wouldurge that the said essential eleme nt hasnot been sat is fied in the present caseas there is no satisfactory andacceptable evidence on the s ide of theplaintiff that she or anyone on herb eh alf ha d a cc ep te d th e s ettlem en tduring the l i fet ime of K rishnamma l, andth ere fo re th e im pu gn ed tra nsa ctio nunder Ex hibit B-1 cannot be said to haveb ee n com pleted w ithin the m eaningof Section 122 ofthe Transfer of Property Act . He Woulda lso b ring to our notice that the tria lCourt has not f ramed any issue on thisaspect or rendered any f inding as to theacceptance of the gift . According to thelearned Counsel, as Krishnamm alcontinued to be in possessioncorpus during her li fet ime and therebypostponed the right o f the sett lees toenjoy the properties. T herefore, there isno question o f Exh ib it B -1 . becom ingineffective or inoperative on the ground

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o f there being no vesting of title inpraesenti on the settlees.18. Now, we shall pass on to theimportant question of law raised by Mr .G ovin d S wa min ath an .S ec tio n 1 22 ofthe Trans fer o f P roperty Act reads asfollows:

Gift is the transfer of certain exist ing :m ovable o r im m ovab le p roperty m adevoluntar ily and without consideration,b y one p erson, ca lled th e do no r, toanother cal led the donee, and acceptedby or on behalf of the donee.Such acceptance must be made dur ingthe l ifetime of the donor and whi le he isstill-capable of giving.If the done e dies before acceptance, thegift is void.S ections 122 to 129, com ing underChapter VII. of the Act, under theheading "O f G ifts " dea l w ith variousaspects o f a g ift, v iz ., rega rd ing theeffect of transfer, suspension andre vo ca tio n of g ift, e tc . S ec tio n 1 22 ,which defines a 'g ift ' contemplates theacceptanc e of the gift by or on beh alf of

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th e d on ee du rin g th e lifetim e of th edonor.

Essentials of a Gift:Donor and Donee: Parties to the gift arethe donor w ho m akes the g ift and thed on e w ho o r w hos e be ha lf th e g ift isaccepted. The donor must be a personcompetent to contract means he /shem ust be of sound mind and m ajoraccording to section 11 of Contract Act1870, and authorized to trans fe r theproperty. A person w ho is not competentto contract cann ot gift his property. Thedone on the o ther hand can even be aminor.Donee must be an ascertainablep erson. A pub lic or an unregistere dsociety cannot be a donee.

Subject m atter of a Gift:

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Gi f t must be made of ex ist ing movableor immovable property capable of beingtransferred. Future property cannot betrans ferred. The share obta ined a fte rpartit ion of the joint fam ily property canbe gi fted. Even a gi ft of property that isobta ined after a pre liminary decree ofpartition is passed by the court is valid.

In te res t c re ate d b y th e D ono r: T hedonor is competent to create ei ther ana bs olute in te re st in th e p ro perty infavour o f the donee o r even a lim itedinterest. For exam ple A gifts hisimmovable property in favour o f B andputs a cond ition that he would enjoy theproperty exclus ive ly wi thout any bodyelse having any right over it. Thisin te rest c reated here is an absolu teinterest. How ever i f the gift says that hem us t en jo y th e p ro pe rty o nly fo r hislifetime and after his death, the prope rtywould revert back to A o r h is heirs , itw ould be the creation of a lim itedestate in favour of B.

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Gift must be made w ith free andvoluntary consent:

The offer to m ake the gift m ust bevolunta ry . A g ift there fo re should beexecuted w ith free consent of thedonor. This consent should be untaintedby force, f raud or undue influence. Merere la tio nsh ip b etw ee n th e do no r an ddonee is not a conclusive fact o f theexercise of undue inf luence and it mustbe proved that the transaction isunconscionable.

Acceptance of the g ift : The g ift mustbe accepted by the donee him self.Acceptance can be valid ly g iven by aminor donee himself or by his mother org ua rdian or by an agent is case of adeity. If the guardian gives theacceptance on behalf o f the minor theminor on attain ing majority can e itheraccept it or re ject it . Acceptance mustbe m ade during the l i fetime of the donorand w hile he is capable of giving.Accord ing to s . 122 if the donee d ies

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before the acceptance of gi ft the gi ft isvoid.

Without Co nsideration:

T he w ord consideratio n refers tom oneta ry considera tion and does notinclude natural love and affection. If theconsideration is a nominal amount o fm oney or the property is grosslyundervalued yet the t ransfer would notbe a gi ft but a sale. In fact, the passingof money as a consideration, howsoeversm all it m ay be, w ould destroy thenature of transfer as a gi ft . Gifts in l ieuo f expectation o f spiritual and mora lbenefit o r a p romise to look a fte r thedonor in her o ld age or through our l ifeare transactions w ithout anyconsideration. A transfer executed forconsideration o f a donee undertakingthe liability of the donor is notgratuitous, and not a gift.

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Types of Gifts:

The two principal categories of gifts areinter vivos gifts and causa m ortis gifts.

Inter v ivos gif ts Inter v ivos is Latin for"between the l iv ing" or "from one l iv ingperson to another." A gi ft inter vivos isone that is perfected and takes effectd urin g the life tim e o f th e d on or a ndd on ee and that is irrevocable w he nm ade. It is a voluntary transfer ofproperty, at no cost to the do nee, duringthe norm al course of the donor's l ife.

A gift inter v ivos dif fers from a sale, aloan, or barter since som ething is givenin exchange fo r the benefit in each o fsuch transfers. Whether the value givenis a money pr ice, a percentage interestor an equiva lent item of property , or apromise to repay, the element ofexchange m akes such transferssom ething other than a gift.

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There are a number o f specia l types ofinter v ivos gi f ts . Forgiveness of a debtis a g i f t o f the amount o f money owed,and delivery can be accom plished bydestroying the promissory note s ignedby the debtor and handing i t over to himor her. A share o f stock in a corporationmay ordinarily be given to some one elseby having ownership t ransferred to theperson on the books of the corporat iono r b y h avin g a n ew sto ck c ertific ateissued in the person's nam e. A lifeinsurance p olicy can generally be givento som eone by d el ivering the pol icy, butit is m ore expedient to express inwrit ing that al l interest in the pol icy isassigned, or t ransferred , to the doneeand to not ify the insurance company tothat effect. Certain states require theseformalit ies s ince insurance is s tr ictlyregulated by state law. Gifts of land c anonly be m ade by written transfer.A donor can l imi t an inter v ivos g i f t incerta in w ays . For exam ple , he o r shemight g ive someone a l i fe estate in h isor her property.

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W hen the donee dies, the propertyreve rts to the donor. A donor cannotplace other restr ict ions on a g if t if therestr ict ions would operate to make thegift invalid . If, for example , the donorre se rve s th e po we r to revo ke a g ift,there is no gift at all.

Causa Mortis Gifts A gift causamort is (Latin for " in contemplation ofapproaching death") is one that is madein anticipation of imminent death. Thistype of gi ft takes effect upon the deathof the donor f rom the expected diseaseor illness . In the event that the donorrecovers from the peril, the gift isa utom atic ally revoked. G ifts ca usamortis only apply to personal property.

A donor who is approaching death m ightm ake a gift by putting his or herintention in wr it ing . Th is procedure isl ikely to be followed, w hen, for exam ple,the donee is in another state, andpersonal de livery is thereby impractical.

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The delivery requirement is f requentlyrelaxed w hen a ca usa m ortis gift isinvolved, since a donor is less l ikely tobe able to make an actual delivery ashis or her death approaches. A sym bol icdelivery is frequently suff icient to showthat a g i f t was made, provided at leastsom e effort to make a delivery isexercised. The overt act aids a court inits determ ination as to w hether adelivery has been mad e.

T he differe nc e b etw ee n a g ift c au samortis and a testamentary g ift made bywi ll is that a will t ransfers ownershipsubsequent to the death o f the donor,b ut a g ift c au sa m ortis tak es e ffe ctimmediately . In most states, the doneebecomes legal owner of the gi ft as soonas it is g iven, subject only to thecondition that the gi ft m ust be returnedif the do nor does not actually die.

The requirements of a causa mort is gi ftare essentia lly the same as a g if t interv ivos. In addit ion , such a g ift must be

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m ade w ith a v iew tow ard the donor'sdeath, the donor must die of theai lment, and there m ust be a del ivery ofthe gift.Gifts causa m ortis are usually made in avery informal m anner and are frequentlymade because dy ing people want to becertain that their dearest possessionsgo to someone they choose.

A donor who is approaching death m ightm ake a gift by putting his or herintention in wr it ing . Th is procedure isl ikely to be followed, w hen, for exam ple,the donee is in another state, andpersonal de livery is thereby impractical.T he c ourts o nly p erm it th e d on ee tokeep the gift if the donor clearlyintended the g ift to take effect at thet ime i t was made. I f the gi ft is m ade inw riting in a w ill and is intended tobecome effective on ly a fter the donordies, the gift is a testame ntary one. Thelaw in each ju risdic tion is very s tric ta bo ut the featu res th at m ake a w illvalid . One requirement , for example, isthat the w ill must be signed by

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witnesses. If the donor w rites dow n thathe or she is m aking a g ift, but thewrit ing is neither an immediate gi ft nora witnessed w ill , the donee can not keepthe gift.

The delivery requirement is f requentlyrelaxed w he n a cau sa m ortis gift isinvolved, since a donor is less l ikely tobe able to make an actual delivery ashis or her death approaches. A sym bol icdelivery is frequently suff icient to showthat a g i f t was made, provided at leastsom e effort to make a delivery isexercised. The overt act aids a court inits determ ination as to w hether adelivery has been mad e.

A g ift causa mort is is on ly e ffective ifthe donor actually dies. It is notnecessary that the donor dieimmediately, but the person must die ofa condition or danger that existed w henthe gift was made and w ithout anintervening recovery. The doneebecomes legal owner of the property in

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m ost sta tes from the tim e the g ift ismade. The person must , however , laterre tu rn th e g ift if th e d on or d oes n otactually die. I f the donor changes his orher m ind and revokes the gift, orrecovers f rom the part icular i llness orphysical in ju ry , the g ift is inva lid . Adonor a lso has the r ight to require thatdebts or funeral expenses be pa id out ofthe va lue of the gift.

Transfer of Gift:

Section 123: Sect ion 123 of Transfer ofproperty act, 1882 deals wi th t ransferhow effected. For the purpose of makinga gift of immovable property, thetransfer m ust be effected by aregistered instrument s igned by or onbehal f o f the donor and at tested by atleast two witnesses. For the purpose ofmaking a g ift o f movable p roperty thetra nsfe r m ay b e e ffe cte d e ith er by aregistered instrument signed asaforesaid or by del ivery. Such del ivery

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may be m ade in the same way as goodssold may be delivered.

Gift how to be m ade:

Section 122 defines g ift to m ean thetransfer of certain moveable orimmoveable property made vo luntarilyand w ithout consideration by one p ersonto another and accepted by or on behalfof the latter . But how the gi ft becomeseffective is g iven under Section 123. Itis seen tha t the gift of im m oveableproperty should be m ade only totransferring the r ight, t it le and interestby the donor to the donee by aregistered instrument s igned by or onbehalf of the donor and must beattested by at least two witnesses. Inthe absence of any registeredinstrum ent of gift and acceptancethereof by the donee, the said propertycould not be sa id to have been legal lytransferred and therefore the gi ft is notcom plete in the eyes of law.

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In the case of " Gift Tax O fficer vs Dr.V . Srinivasan " on 29 January,2002.The Hon 'b le H igh Court held asunder:

"Section 123 of the Transfer of PropertyA ct p ro vid es th at fo r th e p urp ose o fmak ing a gift of imm ovable property, thetransfer m ust be effected by aregistered instrument s igned by or onbehal f of the donor , and attested by atleast two w itnesses. The GT Act doesnot enact any except ion to the generallaw as found in Section 123 of theTransfer of Property Act. Therefore, ino rd er to e ffe ctu ate a va lid g ift, th erequirem ents of Section 123 of theTrans fe r o f P roperty Act should havebeen compl ied with. Sect ion 123 of theT ransfe r of Property A ct re qu ires aregis te red instrum ent. There w as noinstrum ent in M ay, 1956, and m eredelivery of possession would not satisfythe requirements of Sect ion 123 of theT ransfer of Property Act. It w ould,therefore, follow that there was no gif tin the year 1956."

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Therefore , in th is case, i t was he ld bythe H on'ble M ad ras H igh C ourt thatmere de livery o f possess ion would notsatisfy the requirements of Section 123of the Transfer o f Property Act . In thecase of the assessee also m ereagreement to sel l the property on 13thApril, 1981, and mere delivery ofproperty at that t ime did not constituteany gift . The ratio of the decision of theMadras H igh Court reported in (1980)124 ITR 233 (Mad) (supra ) is square lyapp licab le to the facts o f the case. Ifthe formalit ies required by the law arenot com plied with, the gi ft w ould not becomplete. Therefore, g if t of immovableproperty is not complete till thep roperties trans fe rred by registe reddeed. "

Imm ovable property:

Where immovable property is gi fted, thetransfer m ust be effected by aregistered instrument s igned by or on

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behal f of the donor , and attested by atleast two w itnesses. A gift of immova bleproperty is inval id without a registeredinstrumen t even if the intended d onee isput in possession. An oral gi ft is void inlaw unless there is a specif ic statutoryprovision dispensing w ith formalit ies forgifts as laid in the Act.

Rrgistered Gift Deed Denial OfEexcution:

Registered gift deed Denial ofe xe cu tio n o f, b y p erso n b y w ho m itpurports to have been executed Burden of proof of execution is on partyrely ing upon deed and burden has to bed ischarged by calling a t leas t one o fattesting witnesses to prove execution Where burden has not beend is ch arg ed , d ee d ca nn ot b e u se d a sevidence o f g ift. He ld : Section 123 o fthe Transfer o f Property Act, requiresthe specific mode in the m atter ofexecution of gift of im moveableproperty. That gift of im moveableproperty can be m ade only by the

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execution of the registered deedattested by two witnesses. .. .. The lawp re sc ribe s th e sp ec ific m od e th at itm ust be effected by a registeredinstrum ent or deed signed by or onbehal f o f the donor and at tested by atleast two witnesses . Sect ion 68 of theIndian Evidence Act , 1972 required theproduction of at least one of theattesting w itness to prove its execution.Com pliance w ith the provisions ofSection 68 or 69 of the Indian EvidenceA ct is necessary to m ake gift deedadmissible in evidence. . . . . None of thea tte sting w itn es se s o f th e de ed h asbeen exam ined in this case to prove theexecution thereof. The deed dated 29 -11 -1960 could not be used as ev idenceand its execution cannot be sa id to havebeen proved. Smt. Flora M argaret v A.Larwence, 2000(6) Kar. LJ. 27B.

Mo de of T ransfer of gift :

T rans fe r o f p roperty under M ode o ftrans fe r G ift deed m ay p rovide fo rtransfer of existing property to donee at

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future date and/or on happening ofcertain events Intention of donor tobe gathered by reading deed as a w hole N o w ord thereof to be ignored asm ea ning le ss E ffe ct to b e g iven toevery part of deed Where gi ft deed infavour of tw o m inor donees jo intlyconcludes with words "you shall en joyproperty and live as you wish after youhave a ttained m ajority and go t married",the w ords to be in te rp re ted that g iftw ou ld tak e e ffec t on iy w hen d on eesmarry on attain ing major ity Propertyn ot c onv ey ed to d on ee s as m arria gebetween them did not take place. Held:A re ad in g o f S ec tio n 1 23 a lo ng w ithSections 122 and 5 of the Act, itappears to me that in the matter of gi fta lso, transfer or con ve yanc e of th eproperty may be provided to take placein p resent o r in fu tu re . The g ift deedmay also provide that the t ransfer maybe effective on the happening of certainconditions in fu tu re . In o ther w ords,person making the gi ft ma y provide thatthe interest in g ifted p roperty w ill standc on ve ye d o r tran sfe rre d a s p er de ede ither in p resent o r in fu tu re . In the

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deed, it has to be looked into toascertain the intention of the part ies ,whether the t ransfer has been effectedin present or in future, Exp ression lastlyused in the document, "you shal l enjoythe above ment ioned property and l ive,as you wish after you attained majorityand got m arried". These express ionshave to be taken as contro lled by theexpression used earlier that theintention of the author is that the r ightand title as an absolu te ow ner o f theproperty should pass on to the doneeson the fu lfilment o f those conditions .That as the document appears to havebeen executed w ith the object o f them arria ge a nd the e ffe ct o f it is tha tdonees cou ld get absolute ownershipunder the d eed on the fulfi lmen t, of boththe condit ions , namely , a ttain ing theage of m ajority by both of them and theygetting m arried a nd u ntil and unless thishad so happened, the p roperty had toremain in possession of the husband ofthe donor. This action shows that tillthe happening of the condit ion, namely,the attaining the age of majority by thetwo donees and the ir gett ing marr ied ,

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the property had to remain inpossession of the husband of the donor,so, the property had not beentransferred to the donees, the t ransfercou ld take e ffect only on the doneesattain ing major ity and gett ing married.That as the m arriage did not takes placein the present case and the plaint if f didn ot m arry th e d efen da nt's d au gh te r,deed did not become effective totransfer the t i t le of the property to theplaintiff and defendant 1 and the title ofthe property re-exam ined w ith thedonor. M ere execution o f the deed o fcancellation at subsequent stage willnot lead to the conclusion that the gi ftd ee d h ad b ee n a cte d u po n. T he d ee dc an ce lling the g ift d eed m ig ht h avebeen executed as a m atter of m ereprecaution and for safety protection. Hutchegow da v Sm t. Jayam ma andAnother, 1996(2) Kar, L.J. 751.

Attestation o f Gift Deed:

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In the p re se nt c ase , the g ift de ed inquestion has been regis tered and thenecessary endorsements a re made bythe Sub-Registrar. P.W. 2 has sw orn thathe had a ttested the deed. But he hasnowhere stated in his evidence that theexecutr ix namely, Gangavva aff ixed hersignature or m ark to the gi ft deed in hispresence or acknowledged to h im, thatshe ha d aff ixed h er signature or mark tothe g ift deed. Therefore , h is ev idenced oe s n ot satisfy the ingre dients ofdefinit ion 'attested' . Hence, it wil l haveto be he ld that attestation by P.W. 2 andanother person as required by law, hasn ot be en proved. T here fore, th oughG angavva a ppears to have a dm ittedexecution o f the g ift deed as is seenfrom the endorsement of the Sub-Reg istrar, it will have to be held tha t thegift deed, though reg istered, does notsatis fy the ingredients o f Section 123main part. When that is so, no title inlaw c an be sa id to h ave p asse d fro mGangavva to the plaintiffs, evenassuming that Gangavva d id have suchtitle to transfer. Anant Som appa

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Pattar v Kalappa Devendrappa Yarakad,1987(2 ) Kar. L .J . Sh. N . 177 : ILR 1985Kar. 1432.

G ift - p roof o f a ttestation. Where theattestor called as witness says he doesnot know who else attested and there isno other ev idence, he ld , the g ift deedwas not p roved as requ ired by law . Kempamma v Honnamma, 1979(1 ) Kar.LJ. Sh. N. 85.

Oral Gift of an Imm oveable Property:

In view of sec. 123 of Transfer ofProperty Act, a gift of im movableproperty, which is not registered, is badin law and cannot pass any t it le to thedonee. Any oral gift of im movableproperty cannot be made in v iew of theprovisions of sec. 123. Mere del ivery of

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possession w ithout a w ritten instrumentcan not confer any title

Under the M uslim law , an o ra l g ift isperm issible. How ever, in order toconstitute a valid gi ft, the donor shoulddivest himself com pletely of allownership and dom inion over thesubject o f g ift . It is a lso essentia l forth e d on ee n ot o nly to p rov e th at th edonor had made an oral gift in hisfavour, but it is also essential for him toprove that he ac cepted the sa id gift andd eliv ery o f p osse ssio n of th e gifte dproperty had also been effected.

Although the H indu law requires deliveryof possession to com plete a gift ofimmovable property, that law has beenabrogated by sec. 123 of th is Act . Thissection clearly seem s to have the effectof rendering unnecessary the de livery ofpossess ion, substitu ting, as it does,registration for delivery of possess ion.

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S in ce delivery o f po ssession is notnecessary , it fo llow s that if a H induexecutes a g ift in p raesenti o f th reev illages by means of a du ly reg isteredinstrument but reserves possess ion ofthe villages in order to enjoy theusufruct dur ing his l i fet ime, and at thesame time provides that he would nota lienate the property to anybody e lse ,the g ift is pe rfectly valid.Under the Mohammedan law , theessentia ls o f a g ift are : declaration ofgif t by the donor , an acceptance of thegift by the donee, and delivery ofpossession such as is the subject of thegift susceptible of. This rule ofMohammedan law is unaffected by theprovisions of sec. 123, Transfer ofproperty Act and, consequently, aregistered instrument is not necessaryto validate a gift of immo vable property.

Possess ion m eans not a lw ays actualp hy sica l po ss es sion b ut po ss es sionwhich the property is capable o f be inggiven. So far as declaration isconcerned , it must be shown that the

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donor either in the "presence ofw itnesses o r o therw ise made a pub licstatement that he gi fted the property infavour of the donee and that he divestedhimself of the ownership of the propertyby de livering possession to the do nee. AMohammedan can make ora l g i f t o f h isimmovable gift subject to theseconditions.Delivery of possession being essentialto the validity of a gift , it follows that i fthere is no delivery of poss ession, thereis no valid gift.

Under the M ohamm edan law, a valid giftcan be affected by delivery ofpossess ion , and if there is de livery o fpossession, the mere fact that there isa lso an unregistered deed of g ift doesnot m ake the gift invalid.

Delivery of possession:

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A gift after delivery of possessionbecomes i r revocable but in order to bevalid a gift should be follow ed bypossession and i f the gi fted property isc ap able o f physica l possession nondelivery o f the p roperty m akes a g iftinvalid. Delivery is not necessary wherethe donee is a minor and is liv ing wi ththe donor and under h is care . The ru leapplies to Hindus and delivery ofpossession is e ssential to the validity ofa g ift.

Hindu L aw relating to gift:

A lthough the Hindu Law requiresdelivery of possession to c omp lete a gifto f Im m ovable p roperty that law hasbeen abrogated by section 123 o f theact. Since del ivery of possession is notn ec es sa ry, it fo llo ws th at if a h in duexecutes a g ift in p raesenti o f th reev illages by means of a du ly reg isteredinstrument but reserves possess ion ofthe villages in order to enjoy andusufruct during h is lifetime and at the

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same time provides that he would nota lienate the p roperty to anybody e lsethe g ift is pe rfectly valid.

A transaction by wh ich a H indu fa thermakes a d iv is ion of h is se l f acqui resp roperty b etw een his so ns d oes notamount to a g i f t . Where a deed o f g i f twas duly made registered and acceptedthe m ere fact that the deed of g iftremained w ith donor d id not make thegift any the less com plete.

Ma hom edan law relating to gift :

Under the Mahomedan law theessentials of a gift are:D eclaration o f gift by the donor, anacceptanc e of the gift by the donee, anddelivery o f possess ion such as is thes ub je ct o f th e g ift su sc ep tib le o f. Aregistered instrument is not necessaryto validate a gift of immo vable property.

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Under the Mahomedan law a valid g iftcan be effected by delivery ofpossession and i f there is a del ivery ofpossess ion the mere fact that there isa lso an unregistered deed of g ift doesnot m ake the gift invalid.

Delivery of possession being essentialto the val idity of a gi ft i t follows that i fthere is no del ivery of possession thereis no va lid gift . Even the registered deedof gift is not effectual under theMahom edan Law , if i t is accom panied bydelivery of possession.

Gift when takes effect:

A gift tak es effec t fro m th e date ofexecution o f the deed o f g ift and notf rom the date of its registration. A gif ttakes ef fect as soon as the instrumentof gi ft, is duly executed and attested ishanded over to the donee and the g i f thas been accepted by the donee. A gif tof movable or immovable property by aregis tered instrument is complete as

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soon as the donee accepts the sam e .Del ivery of possession is not necessaryunless it is a case of o ral gift under anycustom.

Gift of existing an d future property:

Section 124 of transfer of property act,1 88 2 de als w ith g ift o f e xistin g a ndfuture property. A gif t comprising bothexisting and future p roperty is void as tothe la tte r. A g ift m ust be o f exis tingproperty. A g ift com prising both existinga nd futu re p ro pe rty is v oid a s to th elatter. A g ift cannot be of futureproperty. A g ift o f a sum not availab lewith the f irm or the family or a companywhich is not a banking company and hasno overd raft facility is invalid.

In the case of , Rameshwar Singh AndOrs. vs Harendra Singh And Ors. on30 N ovem ber, 2007, it was he ld that-

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Section 124 ofthe Transfer of Property Act , g i ft of future interest is void underlaw and , admittedly , on 22.2 .69 whenthe two deeds of g i ft w ere executed byRam adhar S ingh, his m other M ost.Sawaro Devi was al ive and she was thefull ow ner of her half share in theancestral propertymeaning thereby thaton the al leged date of execut ion of thegif t deed Ramadhar Singh had only halfshare in the ancestral property le ft byhis father and, so, he w as not e ntit led toexecute g ift deed w ith respect to thee ntire a nc es tralpro pe rty le ft by h isfather. At best he co uld have gifted onlyhalf share in the an cestral property and,therefore, the execution of gift byRam adhar S ingh w ith respect to halfshare of his mother could not be held tobe valid.

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Gift to severa l o f w hom one does notaccept:

Section 125 relates to gi ft to several ofwhom one does not accept. A g ift o f ath ing to tw o o r m ore donees o f w homone does not accept i t is void as to theinterest which he would have taken uphad he accepted.The rule herein refers to gi ft made by adonor to tw o o r m ore persons. As thegift is not valid till it is accepted,accepted by al l is necessary i f the gi f tas a whole to be treated as valid.How ever, if one out of several donees ormore does not g ive the consent the gif tdoes not fai l in i ts entirety and is val idwith respect to the shares of those w hohave acce pted it.

Whe n gift may be suspended or revoked:

Section 126 of transfer of property act,1882 deals when gif t may be suspendedor revoked. The donor and donee m ayagree that on the happening of any

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speci f ied event which does not dependon the wi l l o f the donor a g i f t shal l besuspended or revoked but a g i f t whichthe parties agree sha ll be revocablewhol ly o r in part , at the m ere w ill of thedonor is void w holly o r in part as thecase may be.

A g i ft may also be revoked in any of thecases in which i f i t were a contract i tmight be rescinded. Such as aforesaid agift cannot be revoked. Nothingcontained in this section shall bedeemed to affect the rights oft ransferees for consideration withoutnotice.

Illustration A gives a field to B ,reserving to himself with B s assent theright to take back the fie ld in case Band his desce ndants die before A. B dieswithout descendants in A s l i fet ime . Amay take back the f ield.

Conditional Gifts:

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A gift is primari ly a contract and if boththe part ies agree that the gi ft would berevoked on the happening o f an eventthe happening of which does not dependpurely on the wishes of the donor I thatevent happens, the gi ft w i ll be revoked.This event ma y be certain or uncertain.

The gi f ts can be val id ly revoked in twosituations:

1 ) The donor and the donee may agreethat on the happening of any speci f iedevent which does not depend on the w illof the donor a gift shall be suspended orrevoked;2) The gif t can be revoked in case, if itw as a contract it could have beenrescinded.

C ond ition P rec edent a nd C ond itionSubsequent:

A g ift m ay b e su bjec t to a co nd itio nprecedent or a condit ion subsequent i fthe cond ition precedent is impos sible or

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i llegal, or immoral the gift fa ils . A g if tm ay be subject to a conditionsubsequent and the gift fails andproperty reverts beck to the donor i f thecon dition is n ot fulfil led.

Onerous Gifts:

Section 127 of transfer of property act,1882 deals w ith the onerous gifts.Where a g ift is in the fo rm o f a s inglet ransfer to the same person of severa lth ings o f wh ich one is and the o thersare not burdened by an ob ligation , thedonee can take nothing by the giftunless he accepts i t fu l ly . Where a g i f tis in the form of two or more separateand independent t ransfers to the sameperson of several things, the donee is atl iberty to accept one of them a nd refusethe others a l though the former may bebeneficial and the latter may beonerous.

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A gift with burden is an onerous gif t. I fby a single instrume nt the donor confersin favour o f the donee a benef i t and aburden the donee has to e i ther acceptth e g ift in to ta lity o r re je ct it in itsentirety. He can not accep t only the befitand reject the burden. This principle isbased on the m axim qui sentitcommodum sentire debetet onus whichm ea ns th at th e o ne w ho rec eive s a nadvantage m ust bear the burden as well .

Section 127 throws l ight on the questionof validity of transfer of p roperty by giftto a minor. It recognises minor'sc ap acity to acc ep t the gift w ithoutintervention o f guardian, if it is possible,or through him.

"127. Onerous g ifts Where a g ift is inthe form of a s ingle transfer to the sameperson of several things of w hich one is,and the others are not burdened by anobligation, the donee can take nothingby the gift unless he accepts it fully.

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W he re a g ift is in th e form of tw o orm ore separate and independenttransfers to the same person of severalthings, the donee is at l iberty to acceptone of them and refuse the others,a lthough the former may be benefic ia land the latter onerous.Onerous gif t to disqualif ied person. Adonee not com petent to contract anda cc ep tin g pro pe rty b urd en ed b y a nyobligation is not bound by hisa cc eptanc e. Bu t if, afte r be com ingcompetent to contract and being awareof the obligation, he retains the prope rtygiven, he becom es so bound."

The last part of Section 127, underlinedabove , c learly indicates that a m inord on ee, w ho can be said to b e in lawincompetent to contract under Section1 1 of the Co ntract Ac t is, how ever,competent to accept a non onerous gi ft.Accep tance of an onerous gift, however,cannot bind the minor. I f he acc epts theg ift during h is m inority o f a p ropertyburdened w ith obligation and onatta in ing majority does not repudiate

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but retains i t , he would be bound by theobligation attache d to it.

S ection 12 7 clearly recognise s thecom petence o f a m inor to accept thegift . The prov is ion of law is c lear andprecedents clari fy the posit ion. See thedecis ions of Judic ia l Commissioner inthe case of Firm of G aneshdas Bhiwarajv s.S urya bh an [1 91 7 X III N agp ur La wReports 18]; Munni Kunwar vs. MadanGopal [1916 (XXXVII I) ILR Al lahabad 62at 69] ; and Firm of Geneshdas Bhiwarajvs. Suryabhan [1917 Vol. 39 IndianCases 46].T he po sitio n in la w, thu s, un de r th eTransfer o f Property Act read wi th theIndian Contract Act is that "theacquis it ion of property being generallybenefic ia l, a child can take property ina ny m an ne r w hatso eve r e ithe r u nd erin testacy o r by W ill o r by purchase org ift or other assura nc e in ter vivos,except where it is clearly to hisprejudice to do so. A gift inter-vivos to ac hild cannot be revoke d. T here is apresump tion in favour of the validity of ag ift o f a parent o r a g randparent to a

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child, i f i t is co mplete [ Halsbury's L awsof England Vo l. 5(2) 4th Edn. Paragraphs6 42 & 6 47 ]. W he n a g ift is m ade to achi ld, general ly there is presumption ofits acceptance because expressacceptance in h is case is not poss ib leand only an impl ied acceptance can beexcepted.

Section 122 (quoted above andunder l ined) covers the case of a minordonee being a person under legaldisability. The section, therefore,employs the expression - 'accepted byor on beh alf of donee'.

A s w e h ave se en a bo ve , S ec tio n 1 27(quoted above and underlined in i ts lastpart) clearly indicates competence of aminor donee to accept the gi f t , i f he iscapable of so doing. Such ac ceptance ofa g if t can be made by himself or on hisbehalf by someone else.

Universal donee:

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Sect ion 128 of the t ransfer of propertyact, 1882 expalins the concept ofuniversal donee. I t states that subjectto the provis ions of section 127, w herea g ift co nsists o f the d on ors w ho leproperty the donee is personally liablefor all the debts due by the donor at thetim e of the gift to the exten t of theproperty com prised therein.

Un iversal donee is a person who getsthe complete property of another undera gi ft deed. I f any portion of the donor sproperty w hether movable or imm ovableis exc luded from the g ift the donee isn ot a universal donee. T his sec tionenacts a pr inciple that i f a person whohas to pa y debts gives his total propertyto another under a g if t deed this doneebecom es personally liable to pay thedebts o f the donor. Th is liability canextend only to the extent of theproperty that he receives under the gi ftbut cannot exceed it .

Donations mortis causa:

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Sect ion 129 of the t ransfer of propertyact expla ins the concept o f donationsmortis causa. Gi fts can be executed bya person genera lly during the prime oftheir li fe or in an advance age. It can beexecuted by a hea lthy person o r by as ick person. Law does not specify anyage or health condition for theexecution of the gi ft other than pr imarycompetency to contract such as the ageof majority o r soundness o f m ind. If aperson executes a g ift when he has anapprehens ion o f death these g ifts a recalled do nations mortis causa.

T he esse ntials of donation s m ortiscausa are:

1 ) The g ift m ust o f m ovable p ropertyonly;2) It should have been made incontem plation of death;3) The donor is suffering from an i l lnessand has an immediate apprehension ofdeath;

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4) The possession of property isdelivered to the don ee;5 ) The g ift becom es void if the donorrecovers from h is illness or the doneepredeceases him.

CONCLUSION

Finally , it can be said that the t ransferof property act, 1882 and its section is acomplete code o f dea ling w ith g ift inBangladesh. Almost al l the legal issuesregard ing g ift a re answ erable in theTransfer of Property Act. 1882especially in the sec tions related to gift.

Bibliography:

Shukla,S.N.(2002).Transfer of Property Act.(24th ed.).

Faridabad: Allahabad Law Agency.

Sarathi,V.P.(2005).Law of Transfer of Property.95th ed.)

New Delhi: Eastern Book Company.

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Khandakar,M.S.(2012).Transfer of Property Act, 1882.

Dhaka:Eastern law Publishers.

Pathak.H.S.(1990). The Indian Contract Act.(11th ed.).

Bombay:N.M.Tripathi Private Limited.

The General Clauses Act(3rded.).(2007).Dhaka:DLR.

Tiwari, H.(2005).Transfer of Property Act.(9th ed.).

Faridadbad: Allahabad Law Agency.

Nandi, N.(1882).Transfer of Property Act,1882.New

Delhi:Diwivedi Law Agency.

http://indiankanoon.org.

explanation of gift

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