Immovable Property

Tuesday, November 28, 2023 12:59 PM

2.Explain the term 'ATTESTATION' under Transfer of Property Act, 1882. Indicate the consequences of an improper attestation.

-Understanding Attestation under the Transfer of Property Act, 1882:

In the context of the Transfer of Property Act, 1882, "attestation" refers to the process of formally witnessing the signing of a legal document. When a
document is attested, it means that two or more witnesses have observed the person executing (signing or marking) the document. This provision aims to
add a layer of credibility and authenticity to the transaction.

Consequences of Improper Attestation:

Proper attestation is crucial, and the consequences of improper attestation can impact the validity and legal standing of the document. Here's a
breakdown:

1. Invalidation of the Document:

- If a document is not properly attested as per the requirements of the Transfer of Property Act, it may be deemed invalid. This means that the
document might not be legally recognized or enforceable.

2. Challenges to Authenticity:

- Improper attestation opens the door for challenges to the authenticity of the document. Parties involved in the transaction or other interested
parties may question the validity of the document, leading to legal disputes.

3. Risk of Unenforceability:

- A document with improper attestation may be at risk of being unenforceable in a court of law. This means that if disputes arise, the document might
not serve as a reliable legal instrument to resolve conflicts or establish rights.

4. Potential Legal Consequences:

- Parties relying on a document with flawed attestation may face legal consequences. Courts may not uphold the terms of such a document, and
individuals involved may find themselves in a disadvantaged position.

5. Impact on Property Rights:

- In real estate transactions, where the Transfer of Property Act often comes into play, improper attestation can directly affect property rights. The
transfer of ownership or other property-related rights may be jeopardized.

Ensuring Proper Attestation:

 To avoid these consequences, it's essential to ensure proper attestation. This involves adhering to the requirements laid out in the Transfer of Property
Act, which typically includes having two or more witnesses present during the signing of the document. Each witness should have seen the executant (the
person executing the document) sign or affix their mark to the instrument.

Conclusion:

In the world of legal documents and property transactions, proper attestation acts as a safeguard. It adds credibility to the document and helps prevent
potential legal complications. Understanding and following the rules of attestation outlined in the Transfer of Property Act is fundamental for ensuring
the validity and enforceability of important documents in various transactions.
GIFT
1.What are the essential characteristics of a valid gift? [15]
-A gift is a transfer of property without any consideration, made voluntarily and accepted by the donee. According to the Transfer of Property Act,
1882, there are some essential characteristics of a valid gift. These are:
• Transfer of ownership: The donor must transfer the ownership of the property to the donee. This means that the donor must relinquish all his rights
and interests in the property and the donee must acquire them. The transfer must be complete and irrevocable. The donor cannot revoke the gift once it
is made, unless there is a condition attached to the gift that allows him to do so. The donor also cannot impose any restriction or limitation on the donee’s
enjoyment of the property . For example, A gifts his house to B, but reserves the right to live in it for his lifetime. This is not a valid gift, as A has not
transferred the full ownership of the house to B.
In the case of Nur Bhanu v. Abdul Amis Bhuinya AIR 2006 in this case the question of fact was the mental capacity of the donor i.e the donor must
be competent to the contract. The Lower court in this case had recorded the finding that the donor was mentally sound and capable of executing the
deed therefore the court said that this finding could not be interfered with in second appeal the deed was duty registered and proved by evidence of the
attesting witness no conspiracy element was proved the suit was also filed after three years and that is why this finding could also not be interfered
with.
In the CIT Jaipur v. Hirehmal Nawalakha case, the court clarified that certain transfers might not precisely meet the legal definition of a "gift"
under Section 122 of the Transfer of Property Act. However, for the purpose of applying gift tax (even though gift tax is now abolished), these
transfers could still be treated as gifts. The court emphasized that any transfer must adhere to Section 17 of the Registration Act, 1908, meaning it
should be executed through a registered document to be legally recognized.
• The property must be existent: To ensure the validity of a gift, it is crucial that the property being gifted must already exist at the time of the gift's
creation. Whether the transfer occurs immediately or in the future is acceptable. Both movable and immovable properties are eligible for gifting.
However, gifting a property that is purely a future prospect is not valid; such gifts are considered void.

According to Section 124, the property must be present and tangible at the time of the gift's initiation; otherwise, the gift will be deemed invalid. An
exception to this rule is an "actionable claim," which, even though intangible, is considered an existing property and can be legally gifted. Notably, a gift
 that includes both existing and future properties is void concerning the future property. It's worth mentioning that a mortgage or released immovable
property can indeed be validly gifted.

In Munni Lal Mahto v. Chandeshwar Mahto (AIR 2007), the court ruled that gifting a portion of the joint family property, which was allotted to the donor
through a preliminary partition decree, is considered valid. The court emphasized that once a preliminary decree for partition is issued, it signifies a
separation of the joint family's status. At this point, the family members cease to be coparceners and become tenants in common. This change allows a
former coparcener to freely gift their share, even if the physical division of property has not yet occurred but has been specified in the decree.

• Voluntarily made: The donor must make the gift out of his own free will and consent. There should be no coercion, fraud, undue influence, or mistake
involved in the transfer. Coercion is the use of physical force or threat to compel the donor to make the gift. Fraud is the use of deception or
misrepresentation to induce the donor to make the gift. Undue influence is the use of unfair advantage or domination over the donor to influence his
decision. Mistake is the erroneous belief or misunderstanding of the donor about the nature or effect of the gift . For example, A gifts his land to B
under the threat of violence from B. This is not a valid gift, as A has been coerced to make the gift.

In the case of Pratima Choudhury v. Kalpana Mukherjee 2014 4 SCC 196 the court stated parameters for examining validity as per nature of the
transaction in the case of undue influence where the consent of the donor of the gift is influenced. The code dealing with such a case has to ask two
questions

(A) Whether the relations between the parties are such that one is in position to dominate the will of the other person?
(B) Whether the position has been used to dominate the will, i.e whether the undue influence has been actually exercised?

• Acceptance: The donee must accept the gift during the lifetime of the donor. The acceptance can be express or implied, but it must be communicated to
the donor. If the donee rejects or dies before accepting the gift, the transfer will be void. Acceptance is the act of taking possession of the property or
signifying consent to receive the gift. It can be done by the donee himself or by someone on his behalf with his authority . For example, A gifts his watch
to B and hands it over to him. B takes the watch and wears it. This is a valid gift, as B has accepted the gift by his conduct.

In the case of R Jamuna Bai v. MA Anusuya (AIR 2001 MAD 392), it was clarified that according to Section 122, the acceptance of a gift must occur
while the donor is alive and mentally capable of giving. If the donee passes away before accepting the gift, the gift becomes void. Since gift transactions
involve two living individuals, it's crucial that the acceptance is completed before the donor's death or incapacity to make a gift. Importantly, merely
being present during the registration of the deed does not automatically indicate acceptance by the beneficiary.

• Delivery of possession- As stated earlier, the property can be either movable or immovable. If it is an immovable property, it is not necessary to show
that the property has been delivered. It is sufficient to showcase the acceptance by the donee. For effecting the gift of immovable property, section
123 says that it must be effected by a registered instrument signed by or on behalf of the donor in the presence of two witnesses and in case of movable
property, it can be either done by a registered instrument or by delivery.
Understanding and adhering to these essential elements ensures the validity and enforceability of a gift transaction under the Transfer of Property Act,
1882. These elements collectively safeguard the interests of both the donor and the donee, providing a robust legal framework for gift transactions.
2.Is a gift is made to several persons and one of them does not accept, decide the validity of such gift?

-A gift is a voluntary transfer of property from one person (the donor) to another (the donee) without any consideration or compensation. According to
Section 122 of the Transfer of Property Act, 1882, a gift is valid only if it is accepted by the donee during the lifetime of the donor. If the donee dies
before accepting the gift, the gift is void.

Section 125 of the Transfer of Property Act, 1882, deals with the case of a gift made to several donees, of whom one does not accept it. It states that
such a gift is void as to the interest which the non-accepting donee would have taken had he accepted. This means that the share of the non-accepting
donee will not go to the other donees, but will revert back to the donor or his legal heirs.

For example, if A makes a gift of a house to B, C and D in equal shares, and D does not accept the gift, the gift will be valid as to B and C, who will each
get one-third of the house. The remaining one-third of the house will not go to B and C, but will remain with A or his legal heirs.

The rationale behind this rule is that a gift is a contract between the donor and the donee, and the consent of both parties is essential for its validity. If
one of the donees does not consent to the gift, the contract is incomplete as to his share, and the donor cannot be compelled to transfer his property to
someone who does not want it. Moreover, the non-acceptance of one donee does not affect the rights of the other donees, who have validly accepted the
gift and acquired a vested interest in the property.

However, this rule is subject to an exception. If the gift is made to several donees jointly, and not in shares, the non-acceptance of one donee will
invalidate the whole gift. This is because a joint gift implies that the donees are to take the property together and not separately, and the intention of
the donor is to create a joint ownership among them. If one of the donees does not accept the gift, the joint ownership cannot be created, and the gift
fails.

For example, if A makes a gift of a house to B and C jointly, and not in shares, and C does not accept the gift, the gift will be void as to both B and C.
Neither of them will get any interest in the house, and the house will remain with A or his legal heirs.

The exception is based on the principle of mutuality and the doctrine of survivorship. A joint gift creates a mutual relationship among the donees, and the
survivorship of one donee over the others. If one of the donees does not accept the gift, the mutuality and the survivorship are destroyed, and the gift
becomes ineffective.

Therefore, the validity of a gift made to several persons and one of them does not accept it depends on the nature of the gift and the intention of the
donor. The donor can specify in the gift deed whether the gift is joint or several, and whether the donees are to take the property together or in shares.
If the donor does not specify, the court will interpret the gift deed according to the circumstances and the evidence.

3.Define "Onerous Gifts". [5]

-Onerous Gifts: Balancing Benefits and Burdens

In the realm of property transfers, onerous gifts present a unique legal scenario defined by the Transfer of Property Act, 1882, specifically under
Section 127. Onerous Gift is based on the maxim “quis ensit commodum debet et sintiue onus.” It literally means that he who enjoys the benefit ought
also to bear the burden, he who enjoys the advantage of a right should also take the accompanying disadvantage. An onerous gift is characterized by the
simultaneous inclusion of both advantageous and burdensome elements within the gift. To comprehend this concept, it's crucial to understand the dual
situations outlined by the Act.

Firstly, if a gift involves a single transfer of multiple items to the same recipient, where one carries an obligation while others do not, the donee faces a
critical decision. Section 127 mandates that the donee can only benefit from the gift if they willingly accept the entire package, including the item
burdened by obligation. This underscores the principle of indivisibility in onerous gifts – one cannot cherry-pick the favorable components and reject the
burdensome ones.

Conversely, when a gift consists of separate and independent transfers, each pertaining to distinct items, the donee is granted the liberty to selectively
accept or refuse the offerings. This is permitted even if some transfers are advantageous while others impose obligations. The donee retains the right to
navigate the gift's components based on their preferences and the associated advantages or burdens.

In essence, onerous gifts exemplify the delicate equilibrium between benefits and responsibilities, providing legal parameters for both donors and donees
to navigate complex scenarios of property transfer. This legal provision ensures a nuanced approach to gifts, considering the varied nature of assets and
the corresponding obligations that might accompany them.
4.Who may be called as "Universal Donee"? [4]
-The term "Universal Donee" refers to an individual who becomes the recipient of the donor's entire property through a gift. According to Section 128
of the Transfer of Property Act, 1882, the Universal Donee assumes a significant responsibility. This section outlines that, subject to the provisions of
Section 127, if a gift encompasses the donor's entire property, the Universal Donee becomes personally liable for all the debts and liabilities of the
donor at the time of the gift. In simpler terms, the Universal Donee takes on the financial responsibilities associated with the donor's debts up to the
extent of the property received.

The concept of a Universal Donee is crucial in scenarios where the donor decides to gift all of their assets and holdings to a single individual. By accepting
such a comprehensive gift, the Universal Donee not only gains ownership of the entire property but also becomes responsible for settling any debts or
obligations linked to that property. This legal provision emphasizes the serious nature of accepting a gift of the donor's entire estate, as it involves
taking on both the assets and the financial commitments associated with those assets.

It's important to note that the term "Universal Donee" is not a commonly used legal phrase but is derived from the understanding of Section 128. This
legal provision underscores the legal consequences and financial obligations that come with being the sole recipient of a donor's complete property
through a gift transaction.
5.Discuss the reason whether a gift can be revoked or suspended. [4+6]
-The provision under Section 126 of the Transfer of Property Act, 1882, addresses the circumstances under which a gift may be suspended or revoked.
The section outlines two main scenarios: one where the donor and donee agree on the revocation or suspension based on a specified event, and another
where the gift is revocable at the mere will of the donor. Let's delve into the reasons behind these possibilities.

Firstly, the law recognizes that parties involved in a gift may agree to suspend or revoke the gift based on the occurrence of a specified event. This
provision acknowledges that there might be conditions or situations, not dependent on the donor's will, that could impact the validity or purpose of the
gift. This flexibility allows for a nuanced approach, aligning with the intentions of the donor and the donee.

Secondly, the section stipulates that if the parties agree that the gift can be revoked wholly or in part at the mere will of the donor, such an agreement
is considered void. This restriction emphasizes the need for a degree of certainty and stability in gift transactions. An unrestricted power of revocation
might undermine the essence of a gift, which is typically intended to be a voluntary and irrevocable transfer.

Moreover, Section 126 acknowledges that a gift can be canceled in situations similar to canceling a contract, except when there is a lack of consideration.
This means that if there are specific conditions that allow canceling a contract, those conditions might also be valid reasons for canceling a gift.

Crucially, this rule protects the rights of people who buy the gifted property for a fair price without knowing about any agreement to cancel or pause the
gift. This ensures that someone who innocently buys the property in good faith isn't negatively impacted by any private agreements between the person
giving the gift and the person receiving it.

illustrations:

(a) A gives a field to B but keeps the right to take it back if B and his children die before A. B dies without any children while A is still alive. In this case,
A can take back the field.

(b) A gives B a sum of one lakh rupees, but A keeps the right, with B's agreement, to take back Rs. 10,000 whenever A wants. The gift is considered valid
for Rs. 90,000, but the Rs. 10,000 A reserved still belongs to A.

In essence, Section 126 reflects a balance between the freedom of the parties to structure their transactions and the need for stability and fairness in
property transfers. It recognizes the dynamic nature of relationships and events, providing a legal framework that accommodates various scenarios while
upholding the core principles of property transfers.
6.Can a donor revoke a gift made by him after delivery of the deed before its registration?
-Property can be transferred through various means, including sale, will, intestate succession, or gift. As per Section 122 of The Transfer of Property
Act, 1882, a "Gift" refers to the voluntary transfer of specific existing movable or immovable property from a donor to a donee, accepted by or on
behalf of the donee. The legal instrument formalizing this transfer is a Gift Deed. The completion of a Gift Deed involves acceptance by the donee, which
must occur before the death of the donor and while the donor is still capable of giving.
For the gift deed to be valid, Section 17 of the Registration Act (1908) mandates registration. The associated stamp duty for registration varies by
state. Section 123 of the Transfer of Property Act (1882) emphasizes the necessity of registering a gift deed, especially for immovable property, and
outlines the requirements, including signatures of the donor and donee, attestation by two witnesses, drafting on stamp paper, and subsequent
registration of the stamp paper.
In general circumstances, once a gift has been made, revoking it becomes a challenging endeavor. However, Section 126 of the Transfer of Property Act,
1882, introduces exceptions to this rule. Revocation of a gift deed is possible through mutual consent of the donor and the donee or by rescinding the
contract between the involved parties.
If the donor and donee mutually agree on the revocation of the gift deed, it will be suspended. This suspension can also occur through stipulations
specified in the contract, not solely at the donor's discretion but contingent upon certain conditions. For instance, if a donor, A, gifts property to B with
the condition that B must maintain A until the latter's demise, and B fails to fulfill this obligation, the gift deed can be revoked. However, a crucial
distinction arises when both the donor and donee agree to allow revocation at the donor's will, rendering such a gift deed void.
A pertinent case, S. Sarojini Amma v. Velayudhan Pillai Sree Kumar, illustrates the significance of possession in determining the validity of revocation.
The appellant executed a gift deed, explicitly stating that the property transfer would occur post her death. However, she canceled the deed before her
demise. The Supreme Court, in its decision, emphasized that since possession of the property had not transferred to the respondent, reasonable
revocation was permitted, as possession is integral to the gift transfer.
Another avenue for revoking a gift deed is through rescinding the contract. A gift deed is essentially a contract between the donor, intending to gift
their property, and the donee, accepting the possession of said property. If the agreement between the parties is deemed invalid, the gift deed becomes
revocable. Section 10 of the Indian Contract Act, 1872, emphasizes that agreements are contracts when made with free consent, lawful consideration,
and a lawful object. Therefore, a lack of free consent can render a gift deed revocable. For instance, if A compels B to execute a gift deed without A's
free consent, such a deed is revocable. Moreover, a minor, not competent to contract as per Section 11 of the Indian Contract Act, cannot execute a gift
deed.
In essence, a genuine gift cannot be capriciously revoked; instead, revocation necessitates a court decree. Section 126 of the Transfer of Property Act,
1882, provides the legal framework for the suspension or revocation of a gift deed. Two modes of revocation are delineated: revocation by mutual
agreement and revocation by rescission. The former implies suspension or revocation upon the occurrence of an uncertain event beyond the donor's
control, expressed in the gift deed. Courts have held that unconditional gifts cannot be revoked by a donor; however, stipulations in separate mutual
agreements can be grounds for revocation. The latter method involves rescinding the gift deed akin to contract rescission. Consent obtained through
coercion, undue influence, fraud, or misrepresentation, as per Section 19 of the Indian Contract Act, renders the gift deed voidable at the donor's
option. In case of the donor's demise, revocation based on these grounds must be pursued within three years of the donor becoming aware. Besides these
grounds, there are no other avenues for revoking a gift deed.
In conclusion, while a donor faces challenges in revoking a gift after the delivery of the deed but before its registration, legal provisions and case laws
offer nuanced pathways for revocation, emphasizing consent, possession, and the fulfillment of contractual obligations as pivotal factors in determining
the validity of such revocation.

7. Name the instrument which will not be valid without attestation under the Transfer of Property Act.

- According to the Transfer of Property Act, 1882, attestation is required for certain documents, such as deeds of sale, gift, mortgage, lease, or
exchange of immovable property, to make them legally valid1. Therefore, an instrument which will not be valid without attestation under the Transfer of
Property Act is a gift deed. A gift deed is a legal document that transfers the ownership of a property from one person to another without any
consideration or payment2. A gift deed must be executed by the donor and attested by at least two witnesses, and then registered under the

Registration Act, 19083. Without attestation, a gift deed will not be valid, and the transfer of property will not be effective.