Gift is defined under section 122 of the transfer of property act,1882 where certain transfer of property is made wether it is movable or immovable made voluntarily without consideration by one person. This is called gist and the person who transfers gift is donor and the other person who accepts the gift is called donee. Here gift includes both movable as well as immovable property. Movable property like car, bike etc and immovable property like land, house etc. Under muslim law the transfer of property is called hiba. Here donor must be a competent person while transferring property and donee can be minor but from his side legal guardian can take the minor’s property and when minor becomes competent then he can give the property back to him. Through will also gift can be given and in muslim law gift is basically is given without consideration. Essential Of Gift are as follows-
Property In Existence- The property which is transfered from donor to donee must be in existence wether the property is movable or immovable and the future property cannot be transfered. Suppose a land is there and donor told donee that he would give him as gift when house will be built so it is a type of future gift which cannot be transfered under section 122.
Ownership Transfer- Once donor has transfered his property to donee the donor must also have to give the ownership right to donee and after the transfer is done the donor should not have any right in that particular property.Transfer of absolute interests implies the transfer of all the rights and liabilities in respect of the property. To be able to effect such a transfer, the donor must have the right to ownership of the said property. Nothing less than ownership may be transferred by way of gift.
Voluntarily Transfer- The offer to make the gift to donee must be voluntarily and the gift must be given by donor by his free consent and if the consent is obtained either through fraud, misrepresentation or by undue influence then under that case gift given will be void and the gift can also be revoked by donor if it is not being given by free consent of the donor. The burden of proving that the gift was made voluntarily with the free consent of the donor lies on the donee.
Age Competency- Here donor who is giving gift must be above the age of 18 years and he must not be the minor and he must not be of unsound mind and if minor gift his property as gift then it can be revoked and it can be revoked under sec 126 which is revocation of gift.
Acceptance of the Gift-The donee must accept the gift. Property cannot be given to a person, even in gift, against his/her consent. The donee may refuse the gift as in cases of non-beneficial property or onerous gift. Onerous gifts are such where the burden or liability exceeds the actual market value of the subject matter. Thus, acceptance of the gift is necessary. Such acceptance may be either express or implied. Implied acceptance may be inferred from the conduct of the donee and the surrounding circumstances. When the donee takes possession of the property or of the title deeds, there is acceptance of the gift.
Conclusion-
This Act extensively defines the gift itself and the circumstances of the transfer of such a gift. The gift, being a transfer of the ownership rights, must be in possession and ownership of the transferee and must be existing at the time of making the transfer. The transferor must be competent to make such transfer but the transferee may be any person. The acceptance of a gift entails the acceptance of the benefits as well as the liabilities coupled with such a gift. A gift may be revoked only by a mutual agreement on a condition by the donor and the donee, or by rescinding the contract pertaining to such gift.
