A PROJECT REPORT ON :

“ GIFT”

SUBMITTED TO :

M.NIDHI

ASSITANT PROFESSOR

SUBMITTED BY

ASHRAF AHMED

(LL.B – SEMESTER IV )

DATE OF SUBMISSION : 1MAY ,2021

2020- 2021

MATS UNIVERSITY PANDRI RAIPUR

CHHATTISGARH
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 DECLARATION

I hereby declare that the Project report entitled “GIFT of TRANSFER OF

PROPERTY ACT " submitted to the MATS UNIVERSITY in partial fulfilment of
the requirements for the award of the degree of LL.B , is a record of original
dissertation work done by me, under the guidance and supervision of M.Nidhi
(Assistant Professor) Lecturer, and it has not formed the basis for the award of any
Degree/Diploma/Associate ship/ Fellowship or other similar title to any candidate of
any University.

Place: Raipur(C.G.) ASHRAF AHMED

Date: 1 MAY 2021 LL.B 4nd SEMESTER

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 CERTIFICATE

This is to certify that Mr. Ashraf Ahmed pursuing LL.B (Semester IV), MATS
University, Raipur, Chhattisgarh has successfully completed the project work titled
“GIFT of TRANSFER OF PROPERTY ACT”. This project work is the record of
his authentic work carried out under my supervision and guidance. The matter
embodied in the project has not been submitted elsewhere for the award of any other
degree.

SUPERVISOR/GUIDE
Date: 1 MAY, 2021 M.Nidhi
(ASSITANT PROFESSOR)
MATS UNIVERSITY, RAIPUR(C.G.)

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 ACKNOWLEGEMENT

I would like to express my special thanks of gratitude to my teacher Nidhi ma’am

who gave me the golden opportunity to do this wonderful Project on the “GIFT of
TRANSFER OF PROPERTY ACT”, which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to them.
Secondly I would also like to thank my parents and friends who helped me a lot in
finishing this project within the limited time.

I am making this project not only for marks but to also increase my knowledge.

THANKS AGAIN TO ALL WHO HELPED ME.

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 LIST OF ABBREVIATION

➢ ACC Accident and Compensation Cases .

➢ AIHC All India High Court Cases.
➢ AIR All India Reporter.
➢ ALT(SC) Andhra Law Times(SC).
➢ ARBLR Arbitration Law Reporter.
➢ CLT Cuttack Law Times.
➢ CONST Constitution.
➢ DLT Delhi Law Times.
➢ E.g. Example.
➢ ELT Excise Law Times.
➢ FLR Factory Law Reporter.
➢ IND INDIA.
➢ IND.CASE Indian Cases.
➢ Imp. Important.
➢ HC High Court.
➢ ILR Indian Law Reports.
➢ KLT Kerala Law Times.
➢ No. Number.
➢ SC Supreme Court.
➢ SCC Supreme Court Case.
➢ SCR Supreme Court Reporter.
➢ V. versus.
➢ Vol. Volume.
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 LIST OF CASES
➢ Raichand v. Dattatrya

➢ N.M Thakker v. P.M Thakker

➢ Brij Raj singh v. Sewak Ram Ram Krishan Mission v. Dogar Singh

➢ In N.M Thakker v. P.M Thakker

➢ Kuppuswami Chettiar v. A. Chettiar

➢ Gomtibai v. Mattula

➢ Balwant Singh v. Mehar Singh

➢ Bhagatrai v. Ghanshyamdas

➢ Ammal v. Rajan Asari

➢ Taraknath v. Sushil Chandra Dey

➢ Vasudev v. Pranlal

➢ CIT v. R.S Gupta

➢ Nasimhaswami v. venkatalingam

➢ Nandi Singh v. Sita Ram

➢ Mool Raj v. Jamma Devi

➢ Thakur Raghunathjee Maharaj v. Ramesh Chandra

➢ Jagdeo Singh v. Nandan Mahto

➢ Sheel Arora v. Madan Mohan Bajaj

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➢ Asokan v. Lakshmikuty

➢ Kamalakanta Mohapatra v. Pratap Chandra Mohapatra

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 LIST OF STATUES:

➢ THE TRANSFER OF PROPERTY ACT 1882

➢ THE REGISTRATION ACT 1908
➢ STAMP ACT 1899

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 TABLE OF CONTENTS

DECLARATION............................................................................................................................... 2
CERTIFICATE ................................................................................................................................. 3
ACKNOWLEGEMENT................................................................................................................... 4
LIST OF ABBREVIATION............................................................................................................. 5
LIST OF CASES ............................................................................................................................... 6
LIST OF STATUES: ........................................................................................................................ 8
TABLE OF CONTENTS ................................................................................................................. 9
BIBLIOGRAPHY ........................................................................................................................... 11
BOOKS ............................................................................................................................................ 11
DICTIONARY: ............................................................................................................................... 11
WEBLIOGRAPHY: ....................................................................................................................... 11
Abstract : ......................................................................................................................................... 12
Preamble:- ....................................................................................................................................... 13
Act Not Exhaustive ......................................................................................................................... 13
Objectives of Transfer of Property Act, 1882 .............................................................................. 13
Introduction ..................................................................................................................................... 15
Research Methodology Aims and Objectives ............................................................................... 16
Nature of project ............................................................................................................................. 16
Sources Of Data............................................................................................................................... 16
Scope and Limitation ...................................................................................................................... 17
Objectives......................................................................................................................................... 17
Research questions .......................................................................................................................... 17
REVIEW OF LITERATURE:....................................................................................................... 18
Mode of Citation ............................................................................................................................. 18
Meaning and Definition .................................................................................................................. 19
Donor :- ............................................................................................................................................ 19
Donee ................................................................................................................................................ 20
Transfer ........................................................................................................................................... 20
Trusts ............................................................................................................................................... 20
Essentials Of A Gift ........................................................................................................................ 26
Suspension Or Revocation Of Gift. ............................................................................................... 29
Suspension Or Revocation of Gift under Mohammedan ............................................................ 33
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Conclusion ....................................................................................................................................... 33

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 BIBLIOGRAPHY

BOOKS :
• Dr. R.K. Sinha's; “The transfer of property act,” Central Law Agency( 1
January 2021)
• Vepa P. Sarathi; “Law of Transfer of Property,” EBC Publisher ( 6th edition 1
January 2017 )
• Dr. Avtar Singh; “Transfer of Property Act,” Universal Law Publishing (6th
edition 1 January 2019)
• S.N SHUKLA; “The transfer of property act,” Allahabad law agency(26TH
edition (1 January 2015)
• Darashaw Vakil; “Commentaries on the Transfer of Property Act (Set of 2
Volumes), LexisNexis(5 edition 27 June 2017)
• Dr Poonam Pradhan Saxen; “Property Law,” Lexis Nexis(3 edition 16
August 2017)

DICTIONARY:
• Black’s Law Dictionary, 6 ed, West Publishing co., 1990

WEBLIOGRAPHY:
• https://study.com.
• https://www.quora.com.
• http://lawtimesjournal.in/
• http://www.legalserviceindia.com
• https://www.lawctopus.com
• https://www.advocatekhoj.com

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Abstract :

The Transfer of Property Act, 1882 is one of the oldest Act in India. Property is a very
wide term and would include anything which carries some value and over which the
right of ownership may be exercised. In Raichand v. Dattatrya AIR 1964 Bom
344 case the court observed that the word property in its most comprehensive sense
includes all legal rights of a person except his personal rights, which constitute his
status or personal condition .Under English law, the property is generally classified
into real property and personal property. The real property comprises of all properties
admitted to specific recovery and is freehold interests in land. Property in respect of
which only a personal action lay was classified as personal property. Personal property
is all forms of property other than real property. In Indian law, the distinction of
properties is immovable and movable property. A transfer of property may confer upon
the transferee an interest, which carries with it the right to immediate possession. Then
that interest is said to be an estate in praesenti. If there is no right to immediate
possession, then the interest in question is said to be an estate de future . Before the
Transfer of Property Act came into existence in 1882, the transfers of immovable
properties in India were governed by the principles of English law and equity. In the
absence of any statutory provisions the courts had to fall back upon English law on
real properties, sometimes forcing the courts to decide the disputes according to their
own notions of justice and fair play, resulting in confused and conflicting case laws.
To remedy these confusions and conflicts a Law Commission was appointed in
England to prepare a code of substantive Law of Transfer of Properties in India. This
Commission prepared a draft Bill which was sent to the secretary of State for India.
This Bill was introduced in the Legislative Council in 1877. The Bill was then referred
to a Select Committee and it was also sent to the Local Governments for their
comments. This Bill was discussed and redrafted on many points and referred to a
Third Law Commission. The Third Law Commission consisted of Sir Charles Turner,
Chief Justice of Madras, Sir Raymond Wast and Mr Whitely Stokes, Law Member of
the Council of the Governor-General.
The Bill pertaining to Transfer of Property Act, 1882 was prepared not less than seven
times before the final Bill was passed and it came into force with effect from 17
February 1882, as Transfer of Property Act, 1882 (4 of 1882).

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The preamble of the Transfer of Property Act, 1882 says that "whereas it is expedient
to define and amend certain parts of the law relating to the transfer of property by act
of parties; it is hereby enacted as follows:—

Preamble:-
The provisions of the Transfer of Property Act, 1882 have no application in a case
where a transfer of property takes place by operation of law. As would appear from
the Preamble of the Transfer of Property Act, 1882, the same applies only to transfer
by act of parties. A transfer by operation of law is not validated or invalidated by
anything contained in the Act. A transfer which takes place by operation of law,
therefore, need not meet the requirement of the provisions of the Transfer of Property
Act or the Indian Registration Act. Section 11 of the Act provides for a non obstante
clause. An overriding effect, therefore, has been given thereby over all other laws for
the time being in force.

Act Not Exhaustive :-

It is to be noted that in the language of Preamble neither the word "consolidate" nor
the word "exhaustive" is used. This means that the Act is not exhaustive of a complete
Code. It only defines and amends certain parts of the law relating to the transfer of
property which is already existing. It is not giving any new consolidated law.
Therefore, the help of certain principles of English law which are not inconsistent with
the present Act may be taken on occasions on the basis of justice, equity and good
conscience. Where any case is not covered by the provisions of the Act, the courts are
permitted to administer the principles of equity. But where the case is within the
provisions of the Act, the Act must be applied. The principle that courts are authorized
to act according to justice, equity and good conscience where there is no specific
provision of law governing the case means that the English law is to be applied if its
application is suited to the Indian society and its circumstances.

Objectives of Transfer of Property Act, 1882:-

As per the preamble of the Act, the Transfer of Property Act, 1882 is to define, amend
or regulate the law relating to the transfer of property by the acts of the parties.
The Act provides a clear, systematic and uniform law for the transfer of immovable
property between living persons.
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The Act is an extension to the Code of Contract since it is an enacted law for transfers
that take place in the consequence of a contract.
With provision for inter-vivos (between two living persons) transfers, the Act, provides
a law parallel to the existing laws of testamentary and intestate transfers.
The Act is not exhaustive because it does not cover the entire dimension of transfer of
property. Hence we can say its scope is limited.
The Act provides scope to apply the principles of Justice, Equity and Good Conscience
if a particular case is not governed by any provision of law.
The Act envisages the following six types of transfer:
▪ Sale,
▪ Mortgage,
▪ Lease,
▪ Exchange,
▪ Gift and
▪ Actionable claim.

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Introduction :-

A gift is generally considered as the exchange or transfer of ownership of any property

from one person to another where the sender willingly transfers his/her property to the
receiver without any compensation i.e., without considering any monetary value. A
gift is often called a form of reward. It may be given by sender to receiver during any
events like Weeding Ceremony, Birthday Party etc.

Gift is a Transfer of Property and is defined in Section 122 of the Transfer of Property
Act, 1882. It is a unique transfer of property in the sense that it involves no
consideration. The basic essence of a gift is the complete absence of consideration The
law of gifts in India is governed by Sections 122 to 129 of the Transfer of Property
Act, 1882. However Mohammedan gifts are subject to the rules of Muslim Law and
the Transfer of Property Act, 1882 is not applicable to such gifts. The differences
between the Muslim Law of gifts and the law of gifts under the Transfer of Property
Act aren’t very great. Apart from a few minor differences owing to religion and custom
the basic essence and concept of a gift is the same under both systems of law. There
cannot be too many differences between gifts under different systems of law as the
definition of a gift is very clear and there is a well-settled consensus as to what the
essential elements of a gift are. To have too many differences between the laws of gifts
might interfere with the fundamentals of the concept of a gift and give the transaction
a different colour. For example there is a consensus amongst almost all systems of law
that a gift involves no consideration and involves the elements of voluntary giving and
acceptance followed by possession in the hands of the donee ie. the person who accepts
the gift from the donor ie. the person who gives the gift. This consensus is almost
universal and will remain unchanged.
In this project a comprehensive comparative study and analysis of Gifts under the
Transfer of property Act, 1882 and Mohammedan gifts has been performed. This
project first deals with Gifts under the Transfer of Property Act. It explains and
analyses the various sections dealing with gifts with reference to appropriate case law.
The study of Hiba or a Mohammedan gift with reference to the various rules of
Mohammedan law relating to gifts and judicial interpretation also forms an integral
part of the project. This project also deals with a donatio mortis causa or a gift made
in contemplation of death with reference to the Indian Succession Act, 1925. In order
to achieve a greater understanding of the concept of gifts the transaction of gift has
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been compared and differentiated from other forms of transfer of property. The project
also compares the law of gifts under the Transfer of Property Act, 1882 and the Muslim
Law of gifts. This part of the project is extremely important as it is here that the conflict
between Mohammedan gifts and Gifts under the Transfer of Property Act, 1882 is
discussed. The researcher has endeavoured to study the conflict in great detail from
various viewpoints and has also given some suggestions about the same.
The right to gift away one’s property whether movable or immovable is an important
right and an important element of property law. Although a gift involves no
consideration in the legal sense it involves the consideration of love, affection, spiritual
and religious benefit etc. whose importance cannot be overlooked. Thus the law
relating to gifts has a humane element in it as such the law of gifts should be clear and
unambiguous without any scope for misuse and controversy. This objective might be
idealist but ultimately the law relating to gifts should always strive to protect the
interests of the donee, donor and the property involved in the greater interests of
justice.

Research Methodology Aims and Objectives

The aim of this Project is to provide a comprehensive analysis and comparison between
Gifts under the Transfer of Property Act, 1882 and Mohammedan Gifts. The project
aims at explaining and analyzing the relevant provisions of the Transfer of Property
Act, 1882 and also understanding the rules of Muslim Law relating to gifts. The project
also aims at differentiating Gifts from other forms of Transfer of Property and studying
gifts under the Succession Act. The controversy regarding the interpretation of section
129 of the Transfer Of Property Act, 1882 has also been highlighted in the project and
suggestions to end the controversy between Hiba and the Transfer of Property Act,
1882 have also been given.

Nature of project
The project is descriptive as well as analytical in nature. However, the majority of the
project is analytical in nature.

Sources Of Data
The sources of data used are mainly secondary in nature. A host of leading textbooks
on Property Law as well as case reporters like All India Reporter (A.I.R), Supreme

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Court Cases (SCC) etc. and journals like Annual Survey of Indian Law have been
referred to.

Scope and Limitation

The scope of this project is limited to the law of gifts prevailing in India only. Areas
of focus and concentration have been the provisions of the Transfer of Property Act,
1882 relating to gifts and the rules of Muslim Law relating to gifts in India. Owing to
the vastness and complexity of the rules under Muslim Law just the basic concepts and
fundamentals of the law of gifts have been focused upon.

Objectives
To explain the concept and meaning of property
To explain the concept and objective of transfer of property
To explain the concept of gift under the transfer of property
To explain the concept of donor and donee

Research questions
The research questions are:
What is a gift under Muslim Law and the Transfer of Property Act?
What are the concepts of property associated with gifts?
What are the various aspects of Property law that muslim Law and the Transfer of
Property Act deal with in relation to gifts and how are these various aspects dealt with?
What are the differences between Mahomedan gifts and Gifts under the Transfer of
Property Act, 1882?
What are the main issues in the controversy and conflict between the Transfer of
Property Act, 1882 and the Muslim Law of Gifts?
How has this controversy been dealt with ?
How can this conflict be resolved so as to prevent injustice of any sort?

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REVIEW OF LITERATURE:

1. Sarathi, Vepa P, The book entitled “Law of transfer of property” illustrates that
the word “transfer” is defined with reference to the word “convey’. The sale is
defined as transfer. The transfer of tangible immovable property of the value of
one hundred rupees and upwards, or in the case of a reversion or other intangible
things, can be made only by a registered instrument.

2. Divekar, G. M , This book deals exhaustively with the subject of conveyancing.

It defines that Conveyancing in its narrow sense, means a process by which legal
title in property is transferred. It explains that conveyancing covers the whole
gamut of the law relating to dealings of properties moveable and immovable.
The book deals with practice on English pattern and provides different types of
documents

3. Pille, R. K, This work covers procedure for registration of cooperative societies,

and rights and liabilities of its members. It further discusses privileges of
societies along with management, settlement of disputes, liquidation, offences
and penalties. The process of audit, inquiry, inspection and supervision is also
dealt in detail.

Mode of Citation

A uniform mode of citation has been adopted throughout the project.

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Meaning and Definition

The term “Gift” is considered as the transfer of property in the eye of law. Without
proper giving and taking process between donor and done, the legal aspects of a gift
will be collapsed.
According to Section 122 of Transfer of Property Act,1882 -“A Gift is the
transfer of certain existing movable or immovable property made voluntarily and
without consideration, by one person, called the donor or guarantor or sender, to
another, called the donor, and accepted by or on behalf of the donee or guarantee or
receiver.” Any gift may be void and suspended if the rules and regulations of giving
and taking a gift are not observed properly. For Example: If the receiver or donee of
any gift dies before accepting it although the sender or donor have done proper
intention and delivery to give that gift to the donee then that gift may be void by law
because of lack of acceptance of the done.
Every transfer of property will take effect only when it is considered by both the
parties1.However, gift is an exception to section 25 of Indian Contract Act, 1872.
Where a contract or an agreement without consideration is void to which gift is an
exception. Gift is transfer of both existing movable and immovable property with the
transfer of ownership without consideration. A gift can only be made in favour of an
ascertainable person means it cannot be in favour of an idol or public. Under the
transfer of property act it is essential that gift must be accepted by the done though it
could not be necessary to be expressly accepted..

Donor :-
The donor is the person who gives. Any person who is sui juris can make a gift of his
property. A minor, being incompetent to contract is incompetent to transfer and a gift
by the minor would therefore be void. Trustees cannot make a gift out of trust property
unless authorized by the terms of the trust.

1
India Contract Act 1872,Section 25
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Donee:-

The donee is the person who accepts the gift. A gift may be accepted by or on behalf
of a person who is not competent to contract. A minor may therefore be a donee; but
if the gift is onerous, the obligation cannot be enforced against him while he is a minor.
The donee may be a person unable to express acceptance. Thus a gift can be made to
a child en ventre sa mere and could be accepted on its behalf. The donee must be an
ascertainable person and so the public cannot be a donee under Section 122 of Transfer
of Property Act, 1882. Gift to an unregistered society and a transfer of property to God
is also not a valid gift within the meaning of Section 122. In Shri Ram Krishan
Mission v. Dogar Singh dedication of property by a Hindu to a dharmasala was held
not to be a gift as the donee was not a living person.

Transfer

This element of a gift is explained later in the context of Section 123 of the Transfer
of Property Act,1882 in this section.
Acceptance
In order to constitute a valid gift the pivotal requirement is acceptance. In N.M
Thakker v. P.M Thakker it was held that the execution of a registered gift deed,
acceptance of the gift and delivery of the property together make the gift complete. No
particular mode of acceptance is required. Circumstances of the case will determine
the mode of acceptance. A transaction of gift in order to be complete must be accepted
by the donee during the lifetime of the donor. If the donor dies before acceptance the
gift becomes void. Factum of acceptance can be established by different circumstances
such as donee taking possession of the property or being in possession of the gift deed
alone.

Trusts
An interpretation of Section 122 will reveal that a gift may be made by the equitable
machinery of a trust; and the interposition of the trustees enables a gift to be made to
a person not yet in existence and therefore incapable of being the donee of a direct gift.

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Section 123 of the Transfer of Property Act, 1882 states how the transfer of a gift is
effected. This Section may be studied under the following heads:

• Mode of Transfer- Immovable Property

A gift of immovable property, no matter what the value of the property, can only be
made by a registered instrument. This provision excludes every other mode of transfer
and even if the intended donee is put in possession a gift of immovable property is
invalid without a registered instrument.

• Signatures

The gift deed must be signed by or on behalf of the donor in order to effect transfer.
Merely the signature of the intended donee on the gift deed will not effect the transfer.

• Attestation

A gift deed must be attested by at least two witnesses and a gift deed not attested by
witnesses is void. The essential conditions of a valid attestation under Section 3 of the
Transfer of Property Act, 1882 are that, two or more witnesses must have seen the
executant sign the instrument or have received from him personal knowledge of his
signature, and with a view to attest or to bear witness to this fact, each of them has
signed the instrument in the presence of the executant. In Brij Raj singh v. Sewak
Ram it was held that no particular form need be followed fore attestation of a gift deed.
In this case a gift deed was executed by the original owner, presented for registration
by a duly authorized power of attorney and attested by two witnesses. It was held to
be valid. Attestation was proved by one of the witnesses by categorically stating that
he had subscribed his signatures on the gift deed in three different capacities ie. Scribe,
attesting witness and identifying witness before the registrar.

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 • Registration

The word ‘Registered’ in this Section does not mean registered in the lifetime of the
donor. If the other conditions to the validity of the gift are complied with the death of
the donor is not a ground for refusing registration. If a gift of immovable property is
made by a registered instrument that is duly registered then the pre-existing right, title
and interest of donor stand divested in the doneee by the operation of Section 17 of
the Indian Registration Act, 1908. In Kuppuswami Chettiar v. A. Chettiar it was
held that a registered instrument styled as a release deed releasing right, title and
interest of releasor without consideration may operate as transfer by way of gift when
the document clearly shows intention to effect transfer and is signed by or on behalf
of releasor and attested by at least two witnesses A gift of immovable property, which
is not registered, is bad in law and cannot pass any title to the donee. An oral gift of
immovable property cannot be made under section 123 of the Transfer of Property
Act, 1882. In Gomtibai v. Mattula it was held that mere intention to give away the
property is not enough to effect the transfer of gift. There has to be a registered gift
deed in order for the gift to be complete in the eyes of law.
The effect of an insufficiently stamped and unregistered gift
deed was considered in Balwant Singh v. Mehar Singh. It was held that an
unregistered gift deed cannot be used to prove title. It was also held that under Section
36 of the Stamp Act once a gift deed is admitted in evidence it cannot be called into
question later on the grounds of insufficiency of stamp.

• Revocation of Gift by Donor

The Privy Council has laid down that after delivery of the deed of gift and before
registration the donor cannot revoke the gift. In Bhagatrai v. Ghanshyamdas it was
held that where a gift has been effected by a registered instrument duly attested and
the gift has been acted upon by the donee, the title legally passes to the donee and
cannot be defeated by any intention of the donor to the contrary.

• Mode of Transfer – Movables

With regard to movable property this Section allows two alternative modes of
transfer viz. Registered deed signed by or on behalf of the donor and Delivery
of possession.
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 • Delivery

In order that a gift is valid under this section the donor should have done all that he
can to put the subject matter of the gift within the power of the donee to obtain
possession. A valid gift must ordinarily be followed by possession. In Baby Ammal
v. Rajan Asari the court held that there must be proof of delivery and possession of
the gifted property. In the absence of such proof the deed cannot be construed to be a
gift deed. In Taraknath v. Sushil Chandra Dey there was no actual delivery of the
possession pursuant to the gift having been made. It was held that the circumstances
did not warrant physical possession and constructive delivery of the possession was
enough to hold the gift valid.

• Actionable Claims
Gift deeds transferring actionable claims like shares, insurance policies have been held
to be valid. In Vasudev v. Pranlal a gift deed relating to shares in a company was
registered. It was signed by both the donor and donee. The donor undertook to have
the shares transferred in the books of the company to the name of the donee. The share
certificates and the gift deed were delivered to the donee along with the blank transfer
forms duly signed. Before the transfer could be effected in the books of the company
the donor died. The question arose whether there was a complete gift or whether the
donor’s heirs could claim the shares. It was contended that the gift would not be
complete before complying with the formalities prescribed by the Companies Act,
1956. The Supreme Court held that the requirements of the Transfer of Property Act,
1882 were fully satisfied and the donee was clothed with a right to get his name entered
in the company’s books as the donee. This right would prevail over the claims of the
heirs of the donor.

Gift to Idol –
There is a conflict in the Judicial decision regarding the mode of effecting gift to an
idol. According to the Allahabad and Patna High court2, gift to an Idol must be made
through a registered document .but according to the Madras High court3 although a
registered document .but, according to madras high court although an idol is
recognized as a juristic person but Since it is not strictly speaking a living person, a

2
Mannu lal V Radha Kishenji ,36 IC 989 (All); Debisaran v . Nandal , AIR 1929 Pat. 591.
3
Nasimhaswami v. venkatalingam AIR 1927 Mad . 636
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gift to an Idol is outside the scope of this act; therefore registration is not necessary .
the Supreme court has endorsed this view. It said that as the suit property was dedicated
to a deity , it did not require registration , and also because it constituted a religious
Trust. Gift to an idol may be oral. It may also be effected by an Unregistered
instrument4

Gift to minor – A widow gifted her self – acquired property by executing a gift deed
in favour of a minor . persons who were not her heirs , cognates or agnates were not
allowed to question the disposition , the donee ,being a minor , at the time ,the property
was put in possession of the donee’s father ,and it was looked after by the father on
behalf of the minor . it was held that the father had no right to execute a will giving the
property to the sons of his second wife. Oral evidence was not allowed to show that
the doner always intended to gift the property to the father of donee5

This Section does not apply to territories excluded from the operation of the Indian
Registration Act, 1908.Section 124 of the Transfer of Property Act, 1882 states that
a gift of future property is void. There cannot be a gift of future property for such a gift
can only be a promise and a promise not supported by consideration is invalid as a
contract. There cannot be a gift of future property either under Hindu or Mohammedan
law. In CIT v. R.S Gupta the court laid down that in order to constitute a valid gift
there must be existing property. In this case a gift was given by instructing a non
banking company, firm or Hindu Undivided Family in which the donor had an account
to give effect to the gift by debiting his account and crediting the account in the name
of the donee. It was held that mere entries in the books of account would not constitute
a valid gift unless the company, firm or Hindu Undivided Family has sufficient cash
in hand or overdraft facilities with any bank. The court decided that on facts the gift in
question was invalid in absence of cash balance or overdraft facilities in the company.

Section 125 of the Transfer of Property Act,1882 applies only when the gift is to two
or more donees as tenants in common. The refusal of one donee will not prevent the
gift taking effect as regards the share of the others. Section 126 of the transfer of

4
Sainath Mandri trust v . Vijaya , AIR 2011 SC 389.
5
Ramesh chand v . Tarachand,AIR 2008 NOC 1170 (Bom) . such evidence is barred by section 91 and 92 of the Indian
evidence act , 1872 chothu v . board of revenue , AIR
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Property Act, 1882 lays down that conditional gifts are allowed by law. The
requirements as to validity of conditions are:

• A condition should not be vague.

• A condition should not be inherently impossible of performance.
• The condition should not be illegal.
• The condition should not be immoral.
• The condition should not be opposed to public policy.

If the conditions attached to a gift, whether as conditions precedent or as conditions

subsequent, satisfy the requirements mentioned above, they are valid and can be given
effect to. If there is a valid condition precedent, the gift will not take effect until the
condition is fulfilled. If there is a valid condition subsequent, the gift ceases when the
condition is satisfied. In N.M Thakker v.P.M Thakker a conditional gift deed was
executed by which possession and enjoyment of the property were retained during the
donor’s lifetime. There was no recital of acceptance and no evidence in proof of
acceptance. The gift was to become operative after the death of the donor. A
subsequent deed was executed by the donor within a month canceling the gift deed
owing to non- fulfilment of conditions subject to which there was an oral
understanding between the donor and donee. The court held that the gift deed was
validly cancelled owing to non fulfillment of the conditions. A Resumable Gift is one
which is revocable at any time at the mere will of the donor. Such a gift is void ab
initio.

Section 127 of the Transfer of Property Act, 1882 deals with Onerous Gifts. The effect
of an onerous gift is that the donee is liable to the extent of the gifted property in his
hands to meet the obligation with which the gift is burdened. This section grants a
minor the right to repudiate an onerous gift after attaining majority.

According to Section 128 of the Transfer of Property Act, 1882 a universal donee is a
donee who receives the whole of the donor’s property by way of gift. On a plain
reading of this section it is clear that the liability of the universal donee is to the extent
of the property acquired by him by virtue of the gift deed from the donor however in

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reality Section 128 fastens the personal liability upon the universal donee for all debts
due by the donor at the time of the gift.

Section 129 of the Transfer of Property Act, 1882 excludes Mohammedan Law of gifts
and gifts made in contemplation of death from the purview of the law of gifts in the
Transfer of Property Act, 1882. This section is extremely controversial and its
constitutionality has been challenged. It has been discussed in greater detail later in
this project.

Essentials Of A Gift.

The essentials of a valid gift are given below :-

❖ There must be transfer of ownership:

As in case of a sale, there must be a transfer of all the rights in the property by the
donor to the done. It may, however, be noted that it is permissible to make conditional
gifts. The only restriction is that the condition must not be repugnant to nay of the
provisions of Section 10 to 34 of the Transfer of Property Act, 1882.

❖ The ownership must relate to a property in existence:

Gift must be made of existing movable or immovable property capable of being

transferred. Future property cannot be transferred. The share obtained after partition
of the joint family property can be gifted. Even a gift of property that is obtained after
a preliminary decree of partition is passed by the court is valid.

❖ The transfer must be without consideration :

The word ‘consideration’ refers to monetary consideration and does not include natural
love and affection. If the consideration is a nominal amount of money or the property
is grossly undervalued yet the transfer would not be a gift but a sale. In fact, the passing
of money as a consideration, howsoever small it may be, would destroy the nature of

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transfer as a gift. Gifts in lieu of expectation of spiritual and moral benefit or a promise
to look after the donor in her old age or through our life are transactions without any
consideration. A transfer executed for consideration of a donee undertaking the
liability of the donor is not gratuitous, and not a gift.

❖ It must have been made voluntarily:

The offer to make the gift must be voluntary. A gift therefore should be executed with
free consent of the donor. This consent should be untainted by force, fraud or undue
influence. Mere relationship between the donor and donee is not a conclusive fact of
the exercise of undue influence and it must be proved that the transaction is
unconscionable.

❖ The donor must be a competent person:

Donor is the person who makes the gift. In a transaction by way of gift the transferor
is called a donor and he divests his ownership in the property so as to vest it in the
transferee, the done. The donor must be a sui juris. He must have therefore attained
the age of majority, possess a sound mind and should not be otherwise disqualified.
Section 7 of this Act provides that only such persons can effect a transfer of property
who are competent to contract. The result is, therefore, that a minor cannot make a gift
of his properties. According to Halsbury’s Laws of England 6, persons in fiduciary
positions, e.g., trustees cannot make gifts of the property vested in them on behalf of
others unless they are authorised to do so.

❖ The transferee must accept the gift:

The gift must be accepted by the donee himself. Acceptance can be validly given by a
minor donee himself or by his mother or guardian or by an agent is case of a deity. If
the guardian gives the acceptance on behalf of the minor the minor on attaining
majority can either accept it or reject it. If a gift is made to two or more persons, one
of whom is capable of taking and the other is not, it has been held that the former will

6
Vol. 15, para 795.
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take the whole of the property.7 Acceptance must be made during the lifetime of the
donor and while he is capable of giving. According to Section 122 if the donee dies
before the acceptance of gift the gift is void.

7
Nandi Singh v. Sita Ram, (89) 16 Cal. 677; 16 Ind. App. 44 (P.C.).
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Suspension Or Revocation Of Gift.
Section 126 of Transfer of Property Act, 1882 deals with when gift may be suspended
or revoked. According to it, the donor and donee may agree that on the happening of
any specified event which does not depend on the will of the donor a gift shall be
suspended or revoked but a gift which the parties agree shall be revocable wholly or
in part, at the mere will of the donor is void wholly or in part as the case may be.
A gift may also be revoked in any of the cases in which if it were a contract it might
be rescinded. Such as aforesaid a gift cannot be revoked. Nothing contained in this
section shall be deemed to affect the rights of transferees for consideration without
notice.
Gift is transfer of ownership without consideration. Like other transfers, gift too can
be made subject to certain conditions. Donor may make a gift subject to a condition of
it being suspended or revoked. But, such gifts would then be governed by those
provisions of this Act which regulate conditional transfers. Accordingly, if a gift is
made subject to condition of it being revoked in future the condition must be valid and
enforceable under those provisions.
Section 126 lays down two modes of revocation of gift:
A. Revocation by mutual agreement of donor and donee.
B. Revocation by rescission as in the case of contracts .

➢ Revocation by Mutual Agreement:

Donor and done may agree that the gift shall be suspended or revoked upon happening
of an event not dependant on the will of the donor. The condition revoking the gift
must be express; it should not be merely in the form of a wish or desire. In other words,
the condition on the non-fulfilment of which the donor may revoke the gift must be
expressly laid down in the gift. A gift of certain properties was executed in lieu of the
past and future services rendered by done to donor. But failure of done to render
services to donor or to maintain donor in future, was not specified to be a condition for
revocation of the gift deed. The Himachal Pradesh High Court8 held that since the
condition for revocation of gift upon donee’s failure to render services to the donor
was not laid down in the deed, it was unconditional gift and, therefore, cannot be
revoked by the donor.

8
Mool Raj v. Jamma Devi, AIR 1995 HP 117.
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However, even though a condition is not laid down in the gift deed itself, and has been
provided under a mutual agreement separately but forms part of the transaction of gift,
the condition would be valid and enforceable.9
The condition upon which a gift is to be revoked must not depend solely on the will of
the donor. A gift revocable at the pleasure of donor is no gift at all. The condition or
stipulation providing for revocation must have been mutually agreed upon at the time
of the gift. If such agreement is made after completion of gift, since the gift has already
become absolute, it cannot be revoked. However, it’s not necessary that stipulation for
revocation is given in the deed of gift itself. What is necessary is that stipulation and
gift both are made at the same time. They might be in two separate documents but must
form part of the same transaction.
That is to say, the stipulation must relate to the same gift which is to be revoked.
The condition for revocation of gift is a condition subsequent. It must be valid underthe
provisions of law given for conditional transfers. The condition totally prohibiting the
alienation of property is void under Section 10 of this Act. Therefore, if the gift is
made revocable with such condition, the condition itself being void, the gift is not
revoked.10 It is also necessary that the condition upon which the gift is agreed to be
revoked must be a condition subsequent the fulfilment of which is not dependant on
the will or desire of donor. The condition subsequent must be in the nature if future
event beyond the control of donor. For example, A makes a gift of his field to B
reserving to himself with B’s assent the right to take back the field in case B and his
descendants die before A. Here the condition upon which the field given in gift is to
be revoked is a condition depending on uncertain future event not depending on the
will of A. Therefore, if B dies without descendants in A’s life time, the gift is revoked
and A may take back the field. Where the stipulation provide for revocation of gift at
the will or pleasure of donor the stipulation is void and gift is not revoked although
such stipulation is merely agreed upon by donor and donee. Gift revocable at the will
of donor is void. For example, A makes a gift of one lakh rupees to B reserving to
himself with B’s assent the right to take back at his (A’s) pleasure Rs. 10,000/- out of
this amount. The gift as to Rs. 90,000/- is valid but as regards Rs. 10,000/- the gift is
void, i.e., it shall continue to belong to A. Law shall consider that no transfer of Rs.
10,000/- was made at all.

9
Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340.
10
Jagdeo Singh v. Nandan Mahto, AIR 1982 Pat. 22.
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 ➢ Revocation by Rescission as Contracts:
Gift is a gratuitous transfer of ownership made voluntarily. If it could be proved that
the gift was not made voluntarily, i.e., the consent of the donor was not free, the gift
must be revoked. Gift is always preceded by an express or implied contract; offer by
donor and acceptance by done. If the preceding contract itself is rescinded or revoked
there is no question of taking place of transfer (gift) made under it. Accordingly, under
Section 126 a gift is revoked also on any of the grounds on which it might be rescinded
has it been a contract. Section 19 of the Indian Contract Act provides that “Where
consent to an agreement is caused by coercion, undue influence, fraud or
misrepresentation, the agreement is a contract voidable at the option of the party whose
consent was so obtained”. Thus, where the gift is not made voluntarily because of any
of the factors mentioned above, the gift may be revoked by the donor. It is to be noted
that this section deals with revocation which means rescission or repudiation of gift; it
does not deal with cases where the gift is void, e.g., for want of donor’s tide. So, where
the donor’s consent has been obtained by coercion, undue influence, fraud or
misrepresentation the donor has option to repudiate or revoke the gift. If he does not
exercise this option, the gift is not revoked. Gift may be revoked on the above
mentioned grounds only by the donor, he cannot assign this right to any other person.
However, after donor’s death, his legal heirs may sue for the revocation of gift on any
one of these grounds.
The period of limitation for the revocation of gifts on the ground of fraud, coercion,
misrepresentation or undue influence is three years from the date on which such facts
are known to the plaintiff (donor).11 The right to revoke the gift on the above
mentioned grounds is lost when the donor ratifies the gift either expressly or by his
conduct.

11
Art. 59, Indian Limitation Act, 1963.
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 ➢ No Revocation on any other ground:
Except on the ground of (a) condition subsequent not depending on the pleasure of the
donor and (b) on the grounds justifying of a contract, a gift cannot be revoked on any
other ground. A gift deed was validly executed in favour of the done. It was held that
a simultaneous claim by the donor that the gift deed was revoked unilaterally by him
and lodged for registration was not valid as there was no participation by the donee.12
Subsequent conduct of done after acceptance – Irrelevant:
A father executed a registered deed of gift in favour of his son. He had done it because
of love and affection for the son and also to enable him to live a peaceful life. There
was no proof of undue influence. The done remained out of India for a long time. In
the meantime the gift deed remained with the donor and he also kept paying taxes.
There was no mutation for that period in the revenue records. The Supreme Court held
that these circumstances were not sufficient in themselves to show that the execution
of the gift deed was not voluntary. The deed could not be rescinded on the premise that
it was an onerous gift and that the done had failed to fulfil the condition for the gift of
contributing towards the marriage of the donee’s sister the specified sum. Once a gift
is complete, it cannot be rescinded for any reason whatsoever. The subsequent conduct
of the donee is not a ground for rescission of a valid gift.13

➢ Transferee for Consideration without Notice:

The last paragraph of Section 126 of the Act protects the interest of a bonafide
transferee for consideration without notice of donor’s right of revocation. For example,
A makes a gift of his house to B with a condition that he shall revoke the gift if B’s
son does not take up the studies of law after graduation. B sells the house to C. C has
no notice of any such condition. After graduation B’s son does not join the law course.
A cannot revoke the gift because C’s interest shall be affected. If C has notice of such
condition or that C was a gratuitous transferee, A could have revoked the gift.

12
Sheel Arora v. Madan Mohan Bajaj, AIR 2009 NOC 333 (Bom).
13
Asokan v. Lakshmikuty, (2007) 13 SCC 210.
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 Suspension Or Revocation of Gift under Mohammedan Law :
A gift, where both the parties are Muslims, is governed by the provisions of Quranic
Law, also known as the Mohammedan Law, and not by the Transfer of Property Act
as it is inconsistent with the provisions of this act. A Mohammedan, as opposed to
others, can revoke a gift even after delivery of possession except in the following
cases:14
1. When the gift is made by a husband to his wife or by a wife to her husband;
2. when the donee is related to the donor within the prohibited degrees;
3. when the gift is Sadaka (i.e. made to a charity or for any religious purpose).
4. when the donee is dead;
5. when the thing given has passed out of the donee's possession by sale, gift or
otherwise;
6. when the thing given is lost or destroyed;
7. when the thing given has increased in value, whatever be the cause of the
increase;
8. when the thing given is so changed that it cannot be identified, as when wheat
is converted into flour by grinding; and
9. when the donor has received something in exchange for the gift

Except in those cases, a gift may be revoked at the mere will of the donor, whether
he has or has not reserved to himself the power to revoke it, but the revocation must
be by a decree of court.

Conclusion
The conception of the term gift and subject matter of gift has been an age old and
traditional issue which has developed into a distinct facet in property law. The
Transfer of Property Act, 1882 lays down all the rules, regulations and procedures
relating to gift and how its transfer is made. There are certain essentials of a gift like
a must transfer of ownership, the ownership must relate to a property in existence,
the transfer must be without consideration, it must have been made voluntarily, the
donor must be a competent person and lastly the transferee must accept the gift. The

14
http://www.legalserviceindia.com/articles/transfer.htm

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most important essential of the gift is its acceptance i.e. an acceptance of gift must
be made during the lifetime of the donor and while he is capable of giving.
According to s. 122 if the donee dies before the acceptance of gift the gift is void.
Also registration is necessary in all cases of gift of immovable properties and the
title cannot pass without there being a registered deed of gift. A gift is valid and
complete on registration. Also while dealing with the laws relating to gift we have
come across important aspects relating to gift like gift of existing and future
property, when gift may be revoked, donation mortis causa etc.
A deed of gift once executed and registered cannot be revoked, unless the mandatory
requirement of Section 126 of Transfer of Property Act, 1882 is fulfilled.15 So in
the end it can be concluded fairly that Transfer of Property Act, 1882 and its sections
is a complete code dealing with regulations of gift in India. Section 126 of the
Transfer of Property Act, 1882 is very clear and elaborative upon the manner in
which gifts can be suspended or revoked, which is of two ways:
By mutual agreement, or,
By rescissions as contracts.

15
Kamalakanta Mohapatra v. Pratap Chandra Mohapatra, AIR 2010 Orissa 13.

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