Section 122 of the Transfer of Property Act defines “gift” as follows:
“Gift” is the transfer of certain existing moveable or immoveable 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.’
A gift is a gratuitous transfer, i.e., without consideration. In the process, an existing property is transferred in favour of another person without consideration. A gift may be made between two living persons or it may take place after the death of the transferor (testamentary).
A gift between living persons is inter vivos gift, and it is a transfer by operation of law, and it does not come within the purview of this Act. A gift made in the apprehension of death, i.e., gift mortis causa also does not come within the scope of this Art. In a nutshell, a gift can be understood as:-
Essential elements
A gift necessarily involves the transfer of ownership. In this, the whole of the interest of the person in a property is transferred in favour of another person. The person transferring the interest is known as ‘donor’, and the person to whom the interest is transferred in a property is known as the ‘donee’. The person making the gift is donor, whereas the person accepting the gift is donee. It is permissible to make conditional gifts of the property also, but the condition must not be repugnant to any of the provisions of sections 10 to 34 of the Act.
The donor must be competent to contract. The mental capacity of the donor is a question of fact.
For a gift, it is necessary that the property must be in existence at the time of making the gift, although its conveyance may take place either in the present or in future. Both types of properties, i.e., movable and immovable, may be gifted. A gift of future property is void. Section 124 provides that the property must be in existence at the time of the making of a gift; otherwise, the gift will be void. An actionable claim is an existing property, and it can be gifted. A gift comprising of both current and future property is void as to the future property. A mortgaged or leased immovable property may be gifted.
Gift of a part of the joint family which fell to the share of the donor under the preliminary decree of the partition of coparcenary property is held to be valid.
The gift must have been made by the donor voluntarily, i.e., with his/her free will and consent. Where the consent of the donor is not free, i.e., the consent has been given due to coercion or undue influence, the gift will not be a valid gift. Section 15 and 16 of the Indian Contract Act, 1872 define coercion and undue influence, respectively. In coercion, the donor is forced to execute a gift deed by the threat of committing any act punishable by the Indian Penal Code. Under influence as defined under section 16 of the Indian Contract Act, 1872 influences the consent of the donor of the gift. The court dealing with such a case has to ask two questions –
Whether the relations between the parties are such that one is in a position to dominate the will of the other person?
Whether the position has been used to dominate the Will, i.e., whether the undue influence has been actually exercised?
Where a gift-deed was executed by an old illiterate lady and her thumb impression was not identified by her husband. None of the co-villagers or relatives was attesting witnesses. Instead, it was witnessed by a stranger from another village, it was held that gift deed could not be said to be a valid gift and therefore, the claim of ownership over the property by virtue of the gift deed was not tenable.
acceptance of the gift by the donee is necessary. In certain circumstances, the donee may refuse to accept the gift.
Acceptance of the gift may be express or implied. Where the donee accepts the title-deeds of the property gifted, it is implied acceptance of gift.
Where the mother, natural guardian, gifted property to minor retaining possession and right of enjoyment for herself, ownership of property by a minor can be presumed by silent acceptance particularly when the minor is an educated boy of 16 years and has the knowledge of the execution of gift.
The donor must also be a competent person. He/she must have the capacity as well the right to make the gift. He/she must be competent to contract, i.e., he/she must be a major as well as of sound mind.
It is not necessary for the purposing of symbolising acceptance to show that possession of the immovable property gifted under the deed has been delivered. All that is necessary to show is that the things presented by way of gift were accepted by the donee.
It was held that section 123 supersedes the rules of Hindu personal law insofar as they require delivery of possession to the donee. Thus, delivery of possession is not an essential prerequisite for the making of a valid gift in cases of immovable property.
