According to Section 122 of Transfer of Property Act, 1882 ‘Gift’ is defined
as the transfer of certain existing moveable and 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. Gift, as
defined in this section, is gratuitous transfer of ownership in some existing
property made voluntarily. The definition includes gift of both movable as well
as immovable property.
The transferor is called donor and the transferee is
called donee. 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. A
gift is a transfer of property without any monetary consideration by one person
in favour of another and accepted by him or by a person on his behalf. Transfer
without consideration is called a gratuitous transfer.
A gratuitous transfer may
take place between two living persons or, it may take place only after the death
of the transferor. Gift may, therefore, be either inter vivos or, testamentary.
Gift inter vivos is gratuitous transfer of ownership between two living persons
and is a transfer of property within the meaning of Section 5 of Transfer of
Property Act, 1882. Gift testamentary is called a will which is transfer by
operation of law and is outside the scope of this Act.
A gift made during
apprehension of death is called a gift mortis causa. A gift, where both the
parties are Muslims, is governed by the provisions of Quranic Law, and not by
the Transfer of Property Act as it is inconsistent with the provisions of this
Essentials Of A Gift
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
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 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
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 , 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
take the whole of the property. 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.
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:
(i) Revocation by mutual
agreement of doner and donee.
(ii) Revocation by rescission as in the case of
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 Court 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.
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. 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.
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. 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.
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”.
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.
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)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.
No Revocation on any other ground: Except on the ground of:
- condition subsequent not depending on the pleasure of the donor and
- on the grounds justifying of a contract, a gift cannot be revoked on any
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.
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
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.
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.
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:
- When the gift is made by a husband to his wife or by a wife to her
- when the donee is related to the donor within the prohibited
- when the gift is Sadaka (i.e. made to a charity or for any religious
- when the donee is dead;
- when the thing given has passed out of the donee's possession by sale,
gift or otherwise;
- when the thing given is lost or destroyed;
- when the thing given has increased in value, whatever be the cause
of the increase;
- when the thing given is so changed that it cannot be identified, as
when wheat is converted into flour by grinding; and
- 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.
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 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.
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. 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
- By mutual agreement, or
- By rescissions as contracts.
- Family Law, By Paras Diwan