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GIFT AS UNDER TRANSFER OF PROPERTY ACT


INTRODUCTION

The transfer of property act 1882 deals with provisions related to transfer of property in India. This act came into force on 1st July 1882 and it deals with what constitutes transfer and conditions attached to it. According to this act, ‘transfer of property’ means an act where one person gives the property to one or more person or himself and one or more other persons, whether in present or future. The person may include an individual or company or associations or body of individuals.


The property to be transferred may be of two types:-

Movable property

Immovable property


“Immovable property” does not include grass, growing crops or standing timber. According to section 3(26) of general clauses act 1897, immovable property includes land, benefits to arise out of the land and things attached to the earth or permanently fastened to anything attached to the earth. The registration act 1908,2(6) also lays emphasis on what should be included in immovable property. According to this act land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of the land and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass are all included in immovable property.


Eligibility

Any person who is competent to contract is eligible to transfer property either in whole or in part. The transfer may be made orally unless there is specific requirement under any law for the transfer to be in writing. In circumstances where a person is physically unable to sign any contract but is mentally competent, the lawyer under such person, can sign such contract with the help of power of attorney.

Other 18 legislations related to property law:-

· Trusts Act,1882

· Specific Relief Act,1963

· Easements Act,1882

· Registration Act,1908

· Stamp Act,1899

· U.P. Stamp Act,2008

· Limitation Act, 1963

· General Clauses Act,1897

· Evidence Act,1872

· Succession Act,1925

· Partition Act, 1893

· Presidency- Towns Insolvency Act,1909

· Provincial Insolvency Act, 1920

· Recovery of debts due to banks and financial institutions act,1993

· Securitisation and reconstruction of financial assets and enforcement of security interest act,2002

· Contract Act,1930

· Sale of Goods Act,1930

· Negotiable Instruments Act,1881

· Enemy Property Act.

Concept of gift as under transfer of property act

Gift is the transfer of any existing property whether moveable or immoveable, made voluntarily, with no consideration, from the donor to the donee.


Acceptance of gift when to be made

The acceptance of gift must be made whilst lifetime of the donor and while he is capable of giving. However if the donee dies before acceptance, the gift becomes void. Section 122 defines “gift” which includes inter vivos or an absolute gift. However there are other kinds of gift too:-

1) Gift of personal property( Gifts mortis causa) –this gift is made when there is expectation of donor’s death and when there is condition that donor will die as anticipated.

2) Gifts by will

Gifts mortis causa are not included under transfer of property by section 129. gifts by will also, are outside the scope of this act and limitation of this gift are included in the Indian Succession Act. However only gift inter vivos or absolute gift are covered under the purview of this act which is transfer of gift between the living and which becomes absolute during the lifetime of donor and the donee.

At the time of marriage of daughters and sisters, gift of land towards pasupukumkum, is not to be regarded as a gift within the meaning of sec.122. This is because transfer of property towards marriage by pasupukumkum is both involuntary as well as for consideration and this is not under the scope of sec 122[1]

Essential ingredients of gift inter vivos-

  1. lack of consideration

  2. donor

  3. donee

  4. subject matter (property gifted)

  5. donative intention

  6. delivery to donee

  7. acceptance by donee


If the requirements of sec.122 of transfer of proper act read with sec.17 of registration act are satisfied then the gift is said to be a valid one.[2]


Gift or will, test of - The fact whether a document is a gift or will depends on intention gathered from the words used. Test includes:-the name of the documents its registration reservation of the power to revoke use of the future or present tense


Gift by life estate holder- Gift transferred by a life estate holder can bind the revisioners only during the lifetime of the donor and not after his/her death.[3]


Property- Only transfer of gift of tangible property falls under this act .therefore any release of a security without consideration also does not fall under this act .[4]


Existing property- An existing property is an essential ingredient to constitute a valid gift. Under sec 6, the property must be transferable and the subject matter of gift must be certain moveable or immoveable property. Where there is gift of certain amount by entries in the books of accounts by credit or debit, the amount must be recorded in the account of the firm.


Gift of some amount in cash- In case when there is transfer of some amount, it need not be registered nor does it has to comply with any of the requirements contained in sec 122 and 123.[5]


Property dedicated to god, if a gift- Under sec 123 of T.P Act, transfer of property to God by a Hindu is not a valid gift. Hence such dedication may be made without any registered instrument[6].


Transfer how effected- In case where gift of immoveable property is made ,it must be with respect to a registered instrument and which must be signed by or on behalf of the donor as well as attested by at least two witnesses. In case of gift of moveable property transfer may be by registered instrument or by delivery.


Conclusion

By Concluding we can say that gift is any transfer of property whether moveable or immoveable. It is necessary for a gift to be valid to fulfil all the essential conditions and maintain rules and regulations. Revocation of gift may be due to lack of donor’s will and donee’s acceptance, death of the donee, illegal subject matter, misrepresentation of subject matter etc. If all the rules and regulations related to contents and suspension of gift are maintained, then all legal formalities of giving and taking gift must be implemented.

[1] Allam Gangadhar Rao v Gollapalli Ganga Rao AIR 1968 AP 291.


[2] P.jayaramaiah v Argonda AIR 2005 AP 26.


[3] Anita verma v saroj devi AIR 2016 PAT 48


[4] Mohit Chandra v Ram Dayal AIR 1926


[5] Narendra gopal v Rajat (2009) SCC 287.


[6] Idol of shri narshingji v Prabhati 1986



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Author Details: Gitika Jain (3rd year BBA LLB, Amity University, Kolkata)

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