Professional Documents
Culture Documents
By
Y. SRINIVASA RAO
M.A (English)., B.Ed., B.L., (LL.M)
I Addl. Junior Civil Judge, Bhimavaram
INTRODUCTION:
A voluntary transfer of personal property without consideration. A
parting by owner with property without pecuniary consideration. A
voluntary conveyance of land, or transfer of goods, rom one person to
another, made gratuitously, and not upon any consideration of blood or
money 1. Section 122 of the Transfer of Property Act, 1882 defines
''GIFT''2.
1. Dr. Nathu Lal Vaishi & Anr. . vs G.S.Kamal Advocate & Anr on 12 January,
2010, Delhi High Court
2. Sneh Gupta vs Devi Sarup & Ors. on 17 February, 2009, Supreme Court of
India
3. Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr.,2005 (2) AWC 1342
4. Mt. Akbari Begam vs Rahmat Husain And Ors. , AIR 1933 All 861
5. Smt. Sudha Devi And Anr. vs Smt. Shanti Devi,1995 (2) BLJR 1328
6. Ziauddin Ahmed vs M.A. Raoof (Died) By Lr., 2002 (5) ALD 830
7. Hasan Ali vs Hafiz Mustak Ali, 1986 (2) WLN 1
8. Mahboob Sahab vs Syed Ismail & Ors, 1995 AIR 1205
9. Chota Uddandu Sahib vs Masthan Bi (Died) And Ors., AIR 1975 AP 271
10. Shaik Nurbi vs Pathan Mastanbi And Ors., 2004 (3) ALD 719
-Section 128 of the Transfer of property Act speaks about '' Universal
Donee.
-The foremost condition is the gift should consist of the whole
property of the donor.
-In case of a gift pertaining to some portion of the property of donor, such
donee is not a Universal donee.
Deference between '' Hiba'' and ''Gift'':
HIBA (The Mohammedan law) GIFT (The English law)
i) As to a valid gift, under Mohammedan i) As to rights in property, under The
law, three essentials conditions are English law, is classified by a division on
required: (i) declaration of gift by the the basis of immoveable and moveable
donor (ii) an acceptance of the gift, property. The essential conditions of a
express or implied, by or on behalf of the valid gift are (i) The absence of
donee, and (iii) delivery of possession of consideration; (ii) the donor; (c) the
the subject of gift. donee ;(iii) the subject-matter; (iv) the
transfer; and the acceptance
3 (1930) 57 IA 282
4 See section 14 (1) and (2) of the The Hindu Succession Act (Act XXX OF 1956)
5. Where the property is acquired without pre-existing right such as
under a Will, gift, decree or award, her estate depends upon the
terms of the instrument.
6. A Hindu , whether belonging to the Mitakshara or Dyabhaga
School, can make a gift of his/her separate as also self acquired
estate subject to the claims of those entitiled under the Hindu
Adoption and Maintenance Act.
7. No sooner does the donor relinquish his right in the property
followed by delivery of possession and acceptance by the donee
than a gift is completed.
8. See sections 18 to 22 as wife, widowed daughter-in-law,minor
illegitimate children, aged parents and others.
9. A Mitakshara coparcener has no power to make any gift of his
coparcenery interest except small gifts based on affection.
10. The right of a wife or widow for maintenance attaches to her
status so she can pursue the property even in the hands of a stranger
acquiring the same with notice of her claim5.
1. Rameshwar Pandey And Anr. vs Suresh Pandey ,2007 (2) BLJR 895
2. Giano vs Puran And Ors. ,AIR 2006 P H 160
3. Kikabhai Samsuddin vs Collector Of Estate Duty, AIR 1969 Guj 326
4. T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
5. Mst. Noor Jahan Begum vs Muftkhar Dad Khan And Ors. , AIR 1970 All 170
6. Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr
7. HARI SINGH AND ORS. VS KALLU AND ORS. , AIR 1952 All 149
8. Virendra Singh And Ors. vs Kashiram (Deceased By L.Rs.) ,AIR 2004 Raj 196
9. MOMAN LAL VS ANANDI BAI & ORS,1971 AIR 2177 , Supreme Court of
India
10. Hutchegowda vs Smt. Jayamma And Anr. ,ILR 1996 KAR 17
11. K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan
1. Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April,
1999, Supreme Court of India;
2. Giano vs Puran And Ors.,AIR 2006 P H 160;
3. Ramjeet Mahto And Ors. vs Baban Mahto And Ors. ,2003 (4) JCR 268 Jhr;
4. Rameshwar Singh And Ors. vs Harendra Singh And Ors. on 30 November,
2007,Patna High Court;
5. Gurdial Singh And Another vs State Of Punjab And Others on 16 July, 2009 ,
Punjab-Haryana High Court;
6. Mahant Rattangiri vs Chairman Indian Red Cross Society ... on 14 December,
2009, Punjab-Haryana High Court;
7. Smt. Takri Devi vs Smt. Rama Dogra And Ors., AIR 1984 HP 11;
8. Smt. Chinnamma And Ors. vs The Devanga Sangha And Ors., AIR 1973 Kant
338
9. Dhruba Sahu (Dead) And After Him ... vs Paramananda Sahu., AIR 1983 Ori
24
10. Most. Ram Dular Devi And Ors. vs Shri Satya Narayan Prasad And Ors., 2002
(3) BLJR 1757;
Gift under Mohammedan Law:
1. A hiba (oral gift) is an out-and-out transfer of some determinate
thing or an incorporeal right, it is necessary that such thing or right
must be in existence and can be transferred immediately.
2. In the case of a gift of usufruct (Ariat) produce (Manqfi) refers to
rights which accrue from day to day in future. Such produce or use
of a thing becomes property particle by particle as it is brought into
6 AIR 1948 Cal. page 84
being. The manqfi may thus be transferred by the donor during his
lifetime by gift or by bequest and be the subject of gift even though
they are not in existence at the time of the gift.
3. In view of section 129 of the Transfer of Property Act, it is clear
that the rule of Mahommedan Law as to gifts is not affected under
the said Act.
4. Generally, This rule of Mohammedan law is unaffected by the
provisions of sec. 123, Transfer of property Act and, consequently,
a registered instrument is not necessary to validate a gift of
immovable property.
5. In the case of Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors.
Reported in (2009) 6 SCC 160 held thus: -"15. We may notice the definition of
gift as contained in various textbooks. In Mulla's Principles of Mohammadan
Law the "hiba" is defined as a transfer of property made immediately without
any exchange by one person to another and accepted by or on behalf of later
(sic latter). A.A.A. Fyzee in his Outlines of Muhammadan Law defined "gift"
in the following terms: "A MAN may lawfully make a gift of his property to
another during his lifetime; or he may give it away to someone after his death
by will. The first is called a disposition inter vivos; the second, a testamentary
disposition. Muhammadan law permits both kinds of transfers; but while a
disposition inter vivos is unfettered as to quantum, a testamentary disposition
is limited to one-third of the net estate. Muhammadan law allows a man to
give away the whole of his property during his lifetime, but only one-third of it
can be bequeathed by will."..."7
6. In any gift by a Mohammedan, three essential requirements have to
be complied with for a valid gift : (i) Declaration of the gift by the
donor. (ii) Acceptance of the gift expressed or implied by or on behalf of the
donee. (iii) Delivery of such possession of the subject of the gift by the donor
to the donee. (Para 20). it was further observed that '' since the deed itself
makes it clear that upto the date of the execution of this deed, the executant
was in possession, and there can be no oral gift without possession. Therefore,
this document cannot be constituted to be a memorandum of gift but it is a gift
deed itself.'' (para 21)8.
7. It was held in the case of ''Ashiq Ali And Ors. Vs Smt. Rasheeda
Khatoon And Anr9 '', that '' in view of the provision under Section 129
1. Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April,
1999, Supreme Court of India
2. T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
3. Balbhadar Singh vs Lakshmi Bai , AIR 1930 All 669
4. Hari Singh And Ors. vs Kallu And Ors. , AIR 1952 All 149
5. Bishwanath Raut And Ors. vs Babu Ram Ratan Singh And Ors. ,AIR 1957 Pat
485
6. Alapati Nagamma vs Alapati Venkataramayya And Ors. ,(1935) 68 MLJ 191
7. Balappa Tippanna vs Asangappa Mallappa And Anr. , AIR 1960 Kant 234
8. S. Sundaram And Anr. vs R. Damodaraswami And Anr. ,(1986) 1 MLJ 203
9. Har Prasad vs Mst. Ram Devi ,AIR 1964 All 64
10. K. Laxmanan vs Thekkayil Padmini & Ors. on 3 December, 2008 , Supreme
Court of India
REVOCATION OF A GIFT:
Section 126 of the Transfer of Property provides for conditions where a
gift can be revoked. the following are essential ingredients for revocation
of gift:
i) there must be an agreement between the donor and donee that the
gift shall be suspended or revoked on the happening of a specified
event;
ii) such event must be one which does not depend upon the will of the
donor;
iii) the condition as to the suspend or revocation should be agreed to
by the donee at the time of accepting the gift. And,
iv) there must exist a ground , except want or failure of consideration,
on which a contract may be rescinded.
v) the condition should not be illegal, or immoral and should not be
repugnant to the estate created under the gift.
vi) Section 126 is controlled by sec. 10. As such, a clause in the gift
deed completely prohibiting alienation is void in view of the
provisions contained in sec. 10.
vii) A gift, which was not based on fraud, undue influence or
misrepresentation nor was an onerous one, cannot be cancelled
unilaterally. Such a gift deed can be cancelled only by resorting to
legal remedy in a competent court of law.
CONCUSION:
Despite the concept of expectation of reciprocity, a gift is
known to be free. Any person who is the legal owner of a property can
alone make a gift of his property. Basically, a gift is the transfer of
something without consideration. In other words, it can be said that
a voluntary transfer of a property in consideration of love and affection to
person is known as ''GIFT''. It is thus vividly known that '' the chief
characteristic of a gift is that it is a transfer without any consideration.''
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