Key ingredients for a gift, kinds of gifts, onerous gifts, universal donee, exceptions to gifts, case laws and illustrations on gifts,

1. GIFTS

2. What is a gift?
– “Gift” under TPA 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.
– This Section defines a gift as a gratuitous transfer of ownership
in some property that is already existing. The definition includes
the transfer of both immovable and moveable property.

3. Parties to a gift transfer
Donor
– The donor must be a competent person, i.e., he must have the
capacity as well as the right to make the gift.
– If the donor has the capacity to contract then he is deemed to
have the capacity to make the gift.
– Besides capacity, the donor must also have the right to make a
gift.

4. Donee
– Donee does not need to be competent to contract. He may be
any person in existence at the date of making the gift.
– Juristic persons such as firms, institutions, or companies are
deemed as competent donee and gift made to them is valid.
– The gift made to the general public is void. If ascertainable, the
donee may be two or more persons.

5. Essential
elements
It shall be inter vivos (between living
people) of existing movable or immovable
property,
Shall be made voluntarily,
Without consideration,
By the donor to the donee
In case of immovable property it shall be
registered, in case of movable property the
possession shall be delivered,

6. Modes of
making a gift
Section 123 of the
Transfer of
Property Act deals
with the formalities
necessary for the
completion of a
gift.
For the gift of
immovable
property,
registration is
necessary.
In case the
property is
movable, it may be
transferred by the
delivery of
possession
The doctrine of
part performance
is not applicable to
gifts, therefore all
the conditions
must be complied
with.

7. A gift of future property
– Section 124 of the Transfer of Property Act renders the
gift of future property void.
– Gift of future property is merely a promise which is
unenforceable by law.
– Illustration- If a gift is made which consists of both
present as well as future property, i.e., one of the
properties is in existence at the time of making the gift
and the other is not, the whole gift is not considered
void. Only the part relating to the future property is
considered void.

8. A gift made to more than one donee
– Section 125 of the Act says that in case a property is gifted to more than one
donee, one of whom does not accept it, the gift, to the extent of the interest
which he would have taken becomes void.
– Such interest reverts to the transferor and does not go to the other donee.
– A gift made to two donees jointly with the right of survivorship is valid, and
upon the death of one, the surviving donee takes the whole.

9. Onerous gifts
– Onerous gifts refers to the gifts which are a liability than assets.
– The term onerous means burdened.
– Thus a property on which the liabilities exceed the benefits of such property is
called as onerous gifts.
– It is in the hands of the donee to reject such types of gifts.

10. Void gifts
– Following gifts are void:
• A gift comprising both existing and the future property is void as to the latter.
• 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.
• A gift made for an unlawful purpose. A gift in consideration of past illicit cohabitation is immoral and invalid.
• A gift depending on a condition, the fulfilment of which is impossible or forbidden by law.
• Where the donee dies before acceptance
• Gift by a person incompetent to contract
• A gift which under an agreement between the parties is revocable wholly or in part at the mere will of the donor is void wholly
or in part as the case may be.

11. When gift may be suspended or revoked
– Revocation by an Agreement
– A gift is revocable if the donor and the donee have agreed that on the
happening of a specified event and not depending upon the will of the donor,
the gift should be suspended or revoked.
– Revocation on the grounds of undue influence, fraud etc.
– A gift may also be revoked in any of the cases in which if it were a contract,
it might be rescinded on the grounds of undue influence, fraud, coercion etc.
The onus of proving the grounds of revocation lie on the party who wants to
get the gift set aside.

12. Exceptions
Section 129 of the Act provides the gifts which are treated as exceptions to the whole chapter of gifts under
the Act. These are:
Donations mortis causa
These are gifts made in contemplation of death.
Muslim-gifts (Hiba)
These are governed by the rules of Muslim Personal Law. The only essential requirements are declaration,
acceptance and delivery of possession. Registration is not necessary irrespective of the value of the gift.

13. illustrations
A shares in X, prosperous joint stock company, and also shares in Y, a joint stock
company in difficulties. Heavy calls are expected in respect of the shares in Y. A
gives B all his shares in joint stock companies. B refuses to accept then shares in Y.
He cannot take the shares in X.
(b) A, having a lease for a term of years of a house at a rent which he and his
representatives are bound to pay during the term, and which is more than the
house can be let for, gives to B the lease, and also, as a separate and independent
transaction, a sum of money. B refuses to accept the lease. He does not by this
refusal forfeit the money.

14. Case laws
– Sundar Bai v. Anandi Lal,’
– In this case the donee was a child and in the care of the donor himself. The High
Court held that in such circumstance, express acceptance could not be insisted
upon.
– Ponnuchami Servai v. Balasubramanian,
In this case of the father himself was the donor and executed a gift deed in favour
of his minor son. The parties continued to stay together in the said property even
after the gift. In these circumstances, it was held that the gift in favour of the
minor would be deemed to have been accepted as the father himself was the
guardian and had himself executed the gift deed.

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