GIFT DEED BY PRACHI SHARMA

GIFT – Gift is a voluntary transfer of personal property without any consideration; a parting by owner with property without pecuniary consideration ; a voluntary conveyance of land; on transfer of goods, from one person to another, made gratuitously and not upon any consideration of blood or money.

A gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact where there is any equivalent or benefit measured in terms of money in respect of a gift, the transaction ceases to  be a gift and assumes a different color. Love and affection, spiritual benefit and many other factors may enter in the intention of donor to make a gift, but these filial considerations cannot be called or held to be legal considerations as understood by law. [ Somia Bhatia v. State of U.P., AIR 1981 SC 1274 at 1279 and 1280.]

Section 122 of the Transfer of Property Act, 1882 defines ‘Gifts’ as under :

‘Gift’ is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another, called the done, and accepted by or on behalf of the donee.

It is an act which imports a clear gain to the done, an accession to his property, which he could not have demanded, and for which he cannot be compelled to make a return. The gift must be spontaneous.

The word ‘transfer’ means an act by which a living person conveys property to one or more other living persons. In absence of the word ‘transfer’ there cannot be any gift.

GIFT DEED – A gift of immovable property, irrespective of its valuation, must be made by a registered document signed by or behalf of the donor and attested by atleast two witnesses.

Requirements of a valid gift:

  1. Attestation – A gift deed, must be attested by two attesting witness,
  2. Recitals – Recitals in the commencement are drafted in a form those in other forms. The gift documents in India commence by introduction by the donor himself
  3. Deed of Transfer – The deed should be drafted as a deed of transfer, with recitals, if necessary. As there is no consideration, none need be expressed although consideration of “natural love and affection” is generally expressed in all cases of gift to relations and “consideration of esteem regard” is expressed when the gift is in favor of some person for whom the donor has regard. A gift is generally absolute and irrevocable, but a condition of revocation on the happening of a specified event not depending on the will of the donor is valid and a gift may be burdened with obligations.
  4. Registration of Gift-Deed –Registration of gift of immovable property and also of a deed is at all executed, of movable property, is compulsory, under Section 123 of T.P. Act and Section 17(1)(a), Registration Act, whatever may be the value.

Subject matter of the gift – In the nature of things, anything may be given, whether tangible or not. The subject matter of the gift must be in existence. It must not be one of the things declared by Section 6, T.P. Act to be incapable of transfer. The subject matter of the gift must be a certain existing movable or immovable property.

Donor – The person who makes the gift is called the donor. Any person who is sui juris can make a gift of his property. But a minor, being incompetent to contract, is incompetent to make a transfer. A gift by a minor is, therefore, void.  A co-sharer can gift his undivided interest with the consent of other co-sharers.

Donee – The donee is the person who accepts the gift. He need not be a person who is competent to contract. A minor may, therefore, be a done, unless the gift is onerous, in which case, the obligation cannot be enforced against him while he is a minor. In the case of a minor, the acceptance of the gift may be made by the minor’s guardian or somebody else having his custody. A gift can be made even to a child in the mother’s womb and can be accepted on its behalf. The done must be alive on the date of the gift.

Transfer how effected- Section 123 of the Transfer of Property Act, 1882 makes the provision for transferring immovable property as a gift. The Section lays down as under :

For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by atleast two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed aforesaid or by delivery.

Gifts under Hindu Law – The section is applicable to gifts of immovable property made by persons governed by the Hindu Law, and the transfer must be effected in the manner provided by this section for making a valid gift. The section that connotes that delivery of possession is not essential for validating a gift under the Hindu Law. [ Revappa v. Madhav Rao, AIR 1960]

Gifts under Mohammedan Law- A gift by a Mohammedan must comply with the provisions of the Mohammedan Law. The three valid requirements are : public declaration, acceptance and delivery of such possession as the property is capable of. Under the Mohammedan Law the delivery of the possession essential condition for a valid gift.

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