Daily Legal Writing: Gifts

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Gift, Donor, and Donee.—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 'Donee' and accepted by or on behalf of the 'Donee'.

Acceptance when to be made.—Such acceptance must be made during the lifetime of the Donor and while he is still capable of giving. If the Donee dies before acceptance, the gift is void. (Section 122 of the Transfer of Property Act.)

Onerous Gift.—Where in a single transaction several properties are transferred and gifted and some of them are burdened by charges, the Donee cannot pick and choose the properties and unless he accepts the gift fully, the Donee can take nothing of the gift.

Transfer how effected.—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 at least two witnesses.

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

Such delivery may be made in the same way as goods sold may be delivered. (Section 123 of the Transfer of Property Act.)

Note.—Gift deed relating to immovable property will, be registered, whatever its value. As in the case of a mortgage deed attestation by two witnesses is necessary.

Gift of existing and future property.—A gift comprising both existing and future property is void as to the latter. (Section 124 of the Transfer of Property Act.)

Gift to several of whom one does not accept.—A gift of a thing to two or more Donees of whom one does not accept it, is void as to the interest which he would have taken, had he accepted. (Section 125 of the Transfer of Property Act.)

Suspension or revocation of the gift.—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 to which the parties agree shall be revokable 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be revoked in any of the cases (save for want or failure of consideration) in which if it were a contract it might be rescinded. (Section 126 of the Transfer of Property Act.)

Gift under Hindu Law.—According to Mitakshara school of Hindu Law a father cannot give away his joint family property in gift unless he is the only surviving coparcener. He can, however, give away in gift his separate and self-acquired property, subject to the claims of maintenance of those whom he is legally bound to maintain. Under Dayabhag a law, a father being the absolute owner of all the property, whether self-acquired or ancestral, can freely dispose it of.
A gift to a temple or idol can be made verbally according to the High Courts of Patna and Madras but the Allahabad High Court took a different view.

Gift under Mohammedan Law.—The essentials of a gift under the Mohammedan Law are the following:

Declaration of gift by the Donor.
Acceptance of the gift by the Donee.
Delivery of the possession of the subject-matter of the gift.
A registered deed is not essential but even a registered deed will not validate a gift under Mohammedan Law unless there is delivery of possession.

Gift by a Mohammedan to a Hindu or any other person.—
Section 123 of the Transfer of Property Act is not applicable. Therefore in cases of gift by a Mohammedan to a non-Muslim also the gift is validated by a simple delivery of possession.

Execution, Attestation and Registration.—A deed of gift can be executed by the Donor or on his behalf. It must be attested by at least two witnesses. Registration in all cases of immovable property is essential.