INDEX

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01 INTRODUCTION 2

02 SECTION 122 - GIFT 3

03 PARTIES TO A GIFT TRANSFER 4

04 ESSENTIAL ELEMENTS OF GIFT 4

05 MODES OF MAKING GIFT 7

06 TYPES OF GIFTS 11

07 REVOCATION OF GIFTS 12

08 EXCEPTIONS ON REVOCATION OF GIFTS 13

09 CONCLUSION 14

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 GIFT UNDER TRANSFER OF PROPERTY ACT

INTRODUCTION

Movable or immovable property is transferred from one person to another under

different scenarios, under different conditions and for different reasons. Transfers may take
the form of gifts, inheritances, or full purchases. The Sale of Goods Act 1930 applies when
personal property is transferred between living beings (between two survivors). The Property
Transfers Act 1882 applies when property is transferred from a survivor to another.
Inheritance law applies when property is transferred from a deceased person to a living
person. If a person passes away intestate (without leaving a will), the law of intestate
succession applies; if they do leave a will, the law of testamentary succession applies.

A transfer of property is the act of giving away property to another live person, either
now or in the future. Section 5 of the Transfer of Property Act defines it. The act of 1882
governs the transfer of property in a variety of methods, including gift, sale, exchange, and
others. Both absolute and partial rights may be transferred, for example, an absolute right
may be given as a gift while a partial right may be given as a lease.

Gifts are often considered a voluntary transfer of title by the giver without payment or
consideration of monetary value. In some cases, personal or immovable property is involved
and the parties are here two survivors, in other cases the transfer takes place only after the
transferor's death. A lifetime refers to an assignment made between living parties, while a
Will refers to an assignment made after the assignor's death. Only transactions between
survivors are referred to as donations under this law, as a Will transfer does not fall under
Section 5 of the Transfer of Property Act.

If the essential elements of a gift are not properly performed, the gift may be
cancelled or declared void by law. Gifts are covered by many rules. All of these rules include,
for example, the types of property that can be gifted, how gifts are made, suitable assignees,
suspension and cancellation of gifts, and so on.

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SECTION 122 – GIFT

“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 still capable of
giving. If the donee dies before acceptance, the gift is void.

A gift is a transfer of existing movable or immovable property under Section 122 of

the Transfer of Property Act. Such assignments must be voluntary and not subject to
compensation. The transferee is called the donee, and the giver is called the doner. The
recipient must accept the gift. For the purposes of this section, a gift is a gratuitous transfer of
ownership of existing property. There is a statute of limitations on the transfer of movables
and real estate. A gift is a unilateral transfer of property already owned by one person to
another person without compensation. Further, this provision applies only to live donations or
donations between survivors, as the wording of the law makes clear. Gifts and inheritance
due to death are not covered by insurance. One of the few requirements for gifts is that in the
case of an assignment, the giver must transfer all rights in the property to the donee.
However, conditional gifts are also permitted. Section 126 of the Act provides for such
provisions.

In the February 2020 case, Sridhar v. N. Revanna (2000), among the many issues in
the case, if such property is disposed of, is the gift deed under section 126. whether it can be
revoked by: The court had to decide the issue before the Supreme Court was brought up. In
this case Shri Muniswamappa, the great-grandfather of the plaintiff and the grandfather of
Defendant 1, was the absolute owner of the property in the plan and carried out a gift act in
favour of the defendant on the same terms as the property. It must not be transferred, and if
such property is transferred and voided, the act of donation will be void. On the other hand,
the defendant had sold the donated land, but the plaintiff stated that the gift deed clearly
stated that the land could not be sold, and the plaintiff demanded that the land be sold.
claimed to be invalid. transferred to them.

Again, the High Court ruled that the conditions of the gift act were not met, the sale
by the donee was void, and the property was returned.

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PARTIES TO A GIFT TRANSFER

DONOR: The donor must be capable, which means that he must both have the
capacity and the authority to make the donation. The donor is judged to have the ability to
make the donation if he is able to enter into a contract. This indicates that the donor must be
of legal age and be of sound mind at the time of the donation. Juristic individuals are
organisations that have been registered as societies, businesses, or institutions. They are also
capable of making contributions. A minor's or mad person's gift is invalid. In addition to
ability, the donor must also have the legal right to give. His ownership rights in the property
at the time define the donor's privilege.

DONEE: To contract, the donee does not need to be competent. He might be any
living individual on the day the gift is given. A present given to a person who is crazy, a
minor, or even a child still inside the mother's womb is acceptable as long as a competent
person accepts it lawfully on their behalf. Legal entities like businesses, institutions, or
organisations are considered competent donees, and gifts made to them are legitimate. But
the donee must be a person who can be located. The present given to the public is invalid.
The donee may include two or more people, if that is discernible.

ESSENTIAL ELEMENTS OF GIFT

1. THE TRANSFER OF OWNERSHIP: The property must be given to the transferee,

or donee, by the transferor, or donor, who must give up all rights to it. All rights and
obligations with relation to the property are also transferred when absolute interests
are transferred. A donation can only be made if the donor has the legal authority to
transfer ownership of the relevant assets. By way of gift, only ownership may be
transferred. The donation might, like other transfers, be made subject to additional
requirements.
2. EXISTING PROPERTY: The property, which is the subject matter of the gift may
be of any kind, movable, immovable, tangible, or intangible, but it must be in
existence at the time of making a gift, and it must be transferable within the meaning
of Section 5 of the Transfer of Property Act.

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 Gift of any kind of future property is deemed void. And the gift of spes successionis
(expectation of succession) or mere chance of inheriting property or mere right to sue,
is also void.
3. TRANSFER WITHOUT CONSIDERATION: A gift must be gratuitous, meaning
that ownership of the item must be given away for no money or other benefit. Even
the smallest amount of insignificant property or cash provided by the transferee in
exchange for the transfer of a very large asset might qualify as consideration for a sale
or an exchange. The term "consideration" has the same meaning as in Section 2(d) of
the Indian Contract Act for the purposes of this section. The consideration is of a
financial, or monetary, character. Mutual love and affection are not a monetary factor,
hence any property transferred in exchange for love and affection is a gift because it
was given without expecting anything in return. A gift is a transfer of property given
in exchange for the "services" the donee has provided. Yet since liabilities result in
financial responsibilities, a property donated in exchange for the donee taking on the
donor's burden is not gratuitous and is not a gift.
4. VOLUNTARY TRANSFER WITH FREE CONSENT: The donor must give
voluntarily, that is, out of his own free will and agreement, which must be given
freely. When a donor is completely free to make a contribution without being
subjected to coercion, fraud, or undue influence, this is known as free consent. The
donor's will must be free and autonomous in carrying out the gift deed. A donor's
voluntary activity also implies that he or she completed the gift deed while fully
aware of the facts and nature of the transaction. The onus of demonstrating that the
gift was given willingly and with the donor's free permission rests with the donee.
5. ACCEPTANCE OF GIFT: A gift must be accepted by the donee. Even as a gift,
property cannot be transferred to a person without that person's agreement. The donee
has the same right to reject the gift as with unfavourable property or burdensome
gifts. A gift is considered onerous when its burden or responsibility surpasses its true
market worth. Consequently, it is vital to accept the present. Such consent may be
given expressly or inferred. It is possible to infer implied approval based on the
donee's actions and the environment. Acceptance of the gift occurs when the donee
gets possession of the assets or of the title deeds. Acceptance can be assumed when
the right to collect rent is accepted when the property is leased. Yet, simple ownership
cannot be used as proof of acceptance when the property is used jointly by the donor
and donee. Even the minimum proof that the gift has been received by the donee is
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 adequate when the gift is not burdensome. If it can be proven that the donee was
aware that the gift was being made in his favour, then the donee's simple silence
serves as a sign of approval.
A presumption that the executants are aware of what was said in the deed and that it is
accurate emerges when the deed of gift expressly stated that the property had been
turned over to the donee and he had accepted it and the document is registered. The
burden of proving the contrary would be on the donor rather than the donee when
such a presumption is combined with the deed's declaration that the donee had been
given possession of the property.
The gift must be received on the donee's behalf by a competent person if the donee
cannot enter into a contract because he or she is a minor or crazy. A guardian may
receive the gift on behalf of his ward or a parent may do so on their child's behalf.
When the kid reaches majority, he or she may refuse the gift in this situation.
If the donee is a legal person, a competent representative of that legal person must
receive the gift. If the present is intended for a deity, the priest or temple management
may receive it on behalf of the god.
According to Section 122, the acceptance must be made while the donor is still alive
and capable of donating. Acceptance that follows the donor's demise or incapacitation
is not acceptance. The donation is assumed to have been accepted and the gift is
legitimate if it is made during the donor's lifetime but the donor passes away before
the registration and other procedures are completed.

IS REGISTRATION MANDATORY?

According to Section 123 of the Property Transfer Act, an unregistered gift of

property is illegal and cannot give ownership to the recipient. Gift deeds must be stamped and
registered as required. A title cannot be conferred simply by transferring ownership without a
writing instrument. You can't let go of a deed, even if it's a low-value property. Confirmation
by two witnesses is required. This provision excludes other forms of transfer, and gifts of
property without a deed of registration are void, even if owned by the intended recipient.
Gifts by Muhammad’s do not comply with Section 123 of the Property Transfer Act, but if
gift deeds are issued, they are not exempt from registration as provided for in Section 17 of

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the Registration Act. Section 129 of the Transfer of Ownership Act does not exempt written
acts of gift by Muslims.1

MODES OF MAKING GIFT

The requirements required to complete a gift are covered in Section 123 of the
Transfer of Property Act. Only if these procedures are followed is the gift legally binding.
Depending on the type of property, this Section outlines two ways to make a gift.
Registration is required for the donation of real estate. If the item of property is mobile,
delivery of possession may be used to transfer it. This is a discussion of several property
transfer modes:

IMMOVABLE PROPERTY:

In the case of real estate, registration of transfer is required regardless of its value.
The registration of any document, including gift deeds, requires that the transaction be in
writing, signed by the performer (donor), authenticated by two competent persons and duly
authorized before the registration process is officially completed. must be stamped on In
Gomtibai v. Mattulal, the Supreme Court held that a gift of immovable property is
incomplete without a written deed issued by the grantor, authentication by two witnesses,
registration of the deed, and acceptance by the donee. made a verdict.

The partial fulfilment principle does not apply to gifts, so all conditions must be met.
Recipients who own land under unregistered gift deeds cannot defend their property in the
event of eviction. When registering, you must comply with the following:

1
# Parbati vs Baijnath Pathak and Anr. 14 Ind Cas 61
# Vasudev Ramchandra Shelat vs Pranlal Jayanand Thakar and Ors ,1974 AIR 1728
# Firm Mukand Lal Veer Kumar & Anr vs Sri Purushottam Singh & OrS,1968 AIR 1182
# Udaya Naik vs Lokanath Naik and Ors. AIR 1954 Ori 195
# Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon and Anr. ,2005 (2) AWC 1342
# Smt. Sanjukta Ray vs Bimelendu Mohanty and Ors. AIR 1997 Ori 131
# Chennupati Venkatasubbamma vs Nelluri Narayanaswami, AIR 1954 Mad 215
# Bhagabat Basudev And Ors. vs Api Bewa and Ors. AIR 1974 Ori 180
# Vettikuti Naydamma (Died) And ... vs Mupparaju Madhusudhana Rao And ,1996 (2) ALT 185
# Fateh Ali (Died) Per Lrs. And Ors. vs M.A. Aleem And Anr. ,2003 (6) ALD 611.

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 Registration of the gift of real estate is mandatory, but the gift will not be stopped
until it is registered. A gift can be registered and enforceable even after the donor's death if
all essential elements of the gift are in place.

If the required elements of a valid gift are not present, the gift will not be validated by
registration.

The court ruled that the transfer of ownership is unnecessary in the case of a gift of
immovable property, based on the provisions of Article 123 of the Property Transfer Law.
The same was done in the case of Renikuntra Rajama v. K. Sarwanamma argued that the
mere fact that the giver retained the right to use the property for the rest of his life was not
enough to ensure that the gift was registered and accepted by the recipient, even if ownership
of the property was transferred from herself to the recipient. He said it would not affect what
happened.

ORAL GIFT OF AN IMMOVABLE PROPERTY:

A gift of real estate that is not registered is illegal according to section 123 of the
Transfer of Property Act and cannot transfer title to the donee. A verbal gift of real estate
cannot be made due to Section 123's restrictions. A title cannot be granted by the simple
handover of possession without a formal document.2

MOVABLE PROPERTY:

For personal property, the transfer of ownership may be the last step. Registration is
optional in certain circumstances. Transfer of ownership is an acceptable method of donating
personal property, regardless of the value of the property. The shipping method depends on
the type of product being delivered. The only requirement is the favourable transfer of

• 2
Dr. Nathu Lal Vaishi & Anr. vs G.S.Kamal Advocate & Anr on 12 January, 2010, Delhi High
Court
• Sneh Gupta vs Devi Sarup & Ors. on 17 February, 2009, Supreme Court of India
• Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon and Anr.,2005 (2) AWC 1342
• Mt. Akbari Begam vs Rahmat Husain and Ors. AIR 1933 All 861
• Smt. Sudha Devi and Anr. vs Smt. Shanti Devi,1995 (2) BLJR 1328
• Ziauddin Ahmed vs M.A. Raoof (Died) By Lr., 2002 (5) ALD 830
• Hasan Ali vs Hafiz Mustak Ali, 1986 (2) WLN 1
• Mahboob Sahab vs Syed Ismail & Ors, 1995 AIR 1205
• Chota Uddandu Sahib vs Masthan Bi (Died) And Ors., AIR 1975 AP 271
• Shaik Nurbi vs Pathan Mastanbi and Ors., 2004 (3) ALD 719

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property and title to the recipient. Delivery can be considered anything that the parties agree
to consider delivery of the goods or that causes title to the property to pass to the acquirer.

ACTIONABLE CLAIMS:

Section 3 of the Asset Transfer Act defines claims that can be litigated. It may be a
right to claim furniture that the beneficiary does not own or have unsecured financial
obligations to. A right of use to movable property is an enforceable claim. They are therefore
movable intangible assets. Section 130 of the Act provides for enforceable assignment of
claims. A written document signed by the assignor or its legally authorized representative
may be used to transfer enactable rights as a gift. No need to register or relinquish ownership.

A GIFT OF FUTURE PROPERTY:

Gifts of future property are essentially statutory promises that cannot be enforced.
Therefore, under Section 124 of the Property Transfer Act, any future donation of property
will be void. If a gift is made that includes both current and future assets, i.e., if one asset
exists and the other does not exist at the time of the gift, the gift as a whole is not considered
void. yeah. Only those portions relating to future ownership will be considered void. Under
Section 124, gifts of future income from estates before the estate is accumulated are also
void.

A GIFT MADE TO MORE THAN ONE DONEE:

A gift of future property is essentially a statutory promise that cannot be enforced.

Therefore, future donations of property will be void under Section 124 of the Property
Transfer Act. If a gift is made that includes both current and future assets, i.e., if one asset
exists and the other does not exist at the time of the gift, the gift as a whole is not considered
void. yeah. Only those portions relating to future ownership will be considered void. Under
Section 124, gifts of future income from estates before the estate is accumulated are also
void.

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PROVISIONS RELATING TO ONEROUS GIFT:

Onerous gifts refer to the gifts which are a liability rather than an asset. The word ‘onerous’
means burdened. Thus, where the liabilities on a property exceed the benefits of such
property it is known as an onerous property. When the gift of such a property is made it is
known as an onerous gift, i.e., a non-beneficial gift. The donee has the right to reject such
gifts.

Under Section 127, the recipient of a single gift containing multiple characteristics,
one of which is a troublesome characteristic, cannot freely adopt the other characteristics and
reject the disadvantageous part. This rule is based on the idea of "qui sentit comodum sentir
debet et onus" (meaning that whoever benefits from the transaction must also bear the cost).
So, if in the same transaction he is given two properties, the recipient has to choose between
them. One is a hassle and the other is an advantage. He can choose to either accept the gift
and the property that offends him, or reject it outright.

He must accept the onerous portion of the gift if he chooses to accept the
advantageous portion. Nonetheless, a single transfer is a crucial component of this Section.
Only when both the burdensome and lucrative properties have been transferred in a single
transaction do they demand a mutual acceptance or rejection of the duty.

If an onerous present is given to a minor and that donee accepts it, he or she has the
ability to reject the gift after they reach the legal drinking age. When he reaches majority, he
can accept or reject the gift; the giver cannot take it back until the donee rejects it.

UNIVERSAL DONEE

English law does not recognise the idea of a universal donee, but it does recognise the
possibility of a universal succession in the case of a person's demise or bankruptcy. Hindu
law recognises this idea as "sanyasi," a way of life that involves giving up all material
belongings in favour of a spiritual existence. A universal donee is a recipient of the entirety
of the gift from the donor. Both movables and immovables are included in these properties.
According to Section 128 of the Code, the donee is responsible for any debts and obligations
of the donor that were owed at the time of the gift. The equitable notion that one who

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receives some advantages from a transaction must also endure its burden is incorporated in
this section. Nonetheless, the donee's obligations are constrained to the value of the gifts he
has received. The universal donee is not responsible for the surplus portion of the debt if the
liabilities and obligations exceed the market worth of the entire property. This clause
safeguards the rights of the creditor and guarantees that, should the donor owe them money,
they would be allowed to seize his assets.3

TYPES OF GIFTS

VOID GIFTS:

Gifts that are empty despite their name are not actually gifts at all. Any gift that is
made for illegal reasons (see section 6), that is given with a condition that cannot be met or is
prohibited by law, is made by an incompetent person, the transferee dies before accepting, or
is for both current and future property is void to the extent of the future property. 6 So, it is
accurate to say that void presents are an exception to the general rule of what will be
considered a gift.

ONEROUS GIFTS:

Onerous gifts: Section 127 addresses this issue. These are the gifts that have a weight
or duty placed on the property. It is founded on the tenet "qui senti commode sentire debetet
onus," which states that the recipient of a benefit must also shoulder the responsibility. 7 To
qualify as an onerous gift, there must be a single transfer of several assets, one of which is
subject to duties while the others are not, and the transferee must abide by it in order to obtain
all of the assets. In other words, he cannot absolve himself of the responsibility and collect
the remaining assets.

LIFETIME GIFTS:

The most popular kind of present is a lifetime gift, which is provided by the giver and
is typically given on special events like birthdays and other anniversaries. A lifelong present
may be Mr. A giving his son a laptop for his 21st birthday.

3
Illustration: A is B's father. A gives B his entire estate's worth as a present. B becomes a Universal Donee
when A instructs him to settle his obligations. B is therefore obligated to pay the donor's bills in full.

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DEATHBED GIFTS:

These are the contributions that the donor made while still alive, with the caveat that
they wouldn't take effect until after his passing. These gifts are also referred to as
contributions. Deathbed presents, for instance, are when a person, A, decides to sell a portion
of his land to an orphanage, "XYZ," after passing away.

SUSPENSION OR REVOCATION OF GIFTS:

The legal requirements that must be fulfilled in the case of a conditional gift are laid
forth in Section 126 of the Act. The rules of Section 126 must be followed, and the donor
may only make a gift subject to a few restrictions that might result in it being suspended or
cancelled. A gift may only be withdrawn for one of the two reasons that are outlined in this
section.

REVOCATION BY MUTUAL AGREEMENT

A gift subject to terms agreed upon by both the giver and the recipient is a gift that is
suspended or cancelled in the event of an event outside the will of the giver. It should contain
the following components:

• Requests must be made explicitly.

• Requests must be part of the same transaction. It may appear on the gift deed itself or
on another document that is also part of the same transaction.
• Donor cancellation conditions cannot be determined solely by the will of the donor.
• According to the legal guidelines established for conditional transfers, such a
condition must be legitimate. For instance, Section 10 of the Transfer of Property Act
declares that a condition that completely forbids the alienation of a property is invalid.
• Both the donor and the donee must concur on the condition.
• A gift that can be revoked at the donor's discretion is invalid, even if both parties
agree to that condition.

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REVOCATION BY RECESSION OF CONTRACT

A contract for a transfer must come before a gift since it is a transfer. This agreement
may be expressed or assumed. There is no doubt that the future transfer will occur if the prior
contract is voided. Hence, a gift may be cancelled in accordance with Section 126 on any
reasons for which its contract may be cancelled. For instance, Section 19 of the Indian
Contract Act allows the party whose assent was coerced, coerced, unduly influenced,
misrepresented, or fraudulent to dissolve the contract at their discretion. Hence, a gift may be
revoked by the giver if it was not given willingly, i.e., if the donor's permission was gained
by deceit, deception, undue influence, or coercion.

The donor retains the right to revoke the agreement; it cannot be transferred.
Nevertheless, following the donor's passing, the legal heirs of the donor may file a lawsuit to
have the agreement revoked.

The statute of limitations for withdrawing a gift on the grounds of fraud,

misrepresentation, etc. is three years from the day the plaintiff learns of the relevant facts
(donor).

When the donor approves the donation, either explicitly or via his actions, the donor
forfeits the ability to withdraw the gift on the aforementioned grounds.

BONOFIDE PURCHASER

The right of a bona fide purchaser is protected by Section 126 of the Act's final
paragraph. A bona fide purchaser is someone who paid for the provided property in a
responsible and good faith manner. No provision of revocation or suspension of such gift
shall apply if the purchaser is not familiar with the condition linked to the asset that was the
subject of a conditional gift.

EXCEPTIONS

The presents listed in Section 129 of the Act are recognised as exceptions to the entirety of
the Act's chapter on gifts. Which are:

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Donations mortis causa

These presents were given when thinking about passing away.

Muslim-gifts (Hiba)

The guidelines of Muslim Personal Law apply to them. The only conditions that are
absolutely necessary are conveyance of possession, acceptance, and declaration. No
registration is required, regardless of the gift's value. Muslims must register under Section 17
of the Indian Registration Act in the event that they receive a gift of real estate valued more
than 100 rupees. Just the giver must be a Muslim for a gift to qualify as Hiba; the donee's
faith is unimportant.

CONCLUSION

The Transfer of Property Act's guidelines must be followed for a transfer to qualify as
a gift.
This Act provides a detailed definition of both the gift itself and the conditions
surrounding its transfer.
The gift must be in the transferee's possession and ownership at the moment of the
transfer since it constitutes a transfer of ownership rights.
Any individual may be the transferee, but the transferor must be able to effect the
transfer.
If the transferee lacks the capacity to enter into a contract, another competent
individual must approve the acceptance of gift on their behalf.
Future property gifts are invalid.
Both partial acceptance of generous gifts and rejection of burdensome gifts are
invalid.
Accepting a gift requires accepting both the advantages and the obligations that come
along with it.
Only mutual agreement on a condition between the donor and the donee or the
cancellation of the contract relevant to the gift allows for the withdrawal of a gift.
The only two types of contributions that do not adhere to the Transfer of Property
Act's rules are Donations mortis causa and Hiba.

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