GIFTS: SECTIONS 122 TO 129

S.122. Gift defined:-

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.
 Gift is transfer of ownership without
consideration.
It is a gratuitous transfer may take place between
two living persons or
It may take place only after the death of the
transferor.
Gift may be either inter vivos or testamentary.
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. Such gifts are also
excluded from this Chapter.
 Donor: He must be a competent person.
For competency, the donor must have
capacity as well as right of ownership to make
the gift.
At the time of gift, the donor must be of the
age of majority and must have a sound mind.
Gift by minor or insane person is void.
Juristic persons, such as, registered socities or
firms or institutions are also competent to
make gift.
 Donee: He need not be competent to contract.
He could be any person in existence at the date of
making of gift.
A gift can be made to minor or insane person or
even in favor of a child in mothers womb is valid
provided it is lawfully accepted by competent
person on his (her) behalf.
Donee too may be a juristic persons such as
firms, companies or institutions etc.,
However, donee must be ascertainable person.
Gift made to public in general is void.
If ascertainable, donee may be two or more
persons.
 ESSENTIAL ELEMENTS
1. There must be a transfer of ownership:
Conditional gifts may be permitted but the
conditions must not repugnant to sections 10
to 34 of the Act.
2. Existence of property: The property must be
in existence at the time of making the gift,
although its conveyance may take place
either in present or in future.
3. A gift of future property is void.
4. Voluntary transfer, without consideration: The gift must
have been made by the donor voluntarily i.e., with his
free will and consent.
If the consent has been given due to coercion or undue
influence then it is not valid.
While examining the gift deed the Court must see two
important things:
(a) Whether the relations between the parties are such
that one is in the position to dominate the will of the
other person?
(b) Whether the position has been used to dominate the
Will i.e., whether the undue influence has been
actually exercised?
4. Acceptance by Donee: Gift must be accepted by
the donee. Property cannot be given to a person
even in gift against his/her consent.
The donee may refuse the gift, e.g., when it is non-
beneficial property or, onerous gift. Onerous gift
means burden or liability (revenue dues or taxes) on
the property exceeds its actual market value.
5. Condition attached to gift: if the condition was
attached to the gift was that the donee would serve
donor till his life time.
And donee complied with it, after the demise of the
donor the gift became absolute. The legal heirs of
the donor claiming the property on the ground that
service in favor of them was not continued.
 S.123 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.
 Gift of immovable property worth of even one
rupee also needs to be registered.
In Gomtibai v. Muttulal, the SC held that in the
absence of written instrument executed by
donor, attestation by two witnesses, registration
of this instrument, and acceptance thereof by the
donee, the gift of immovable property is not
complete.
The doctrine of part-performance is not
applicable to gifts.
The donee who takes possession of a land under
un-registered gift deed cannot defend his
possession on being evicted.
 The following points are important with regard to
the requirement of registration:
(i) Although registration of gift of immovable
property is must but, the gift is not suspended
till registration.
(ii) A gift may be registered and made enforceable
at law even after the death of the donor
provided the essential conditions are fulfilled.
(iii) Where the essential conditions for a valid gift
are not fulfilled, registration shall not validate
the gift.
 Gift to Idol: Although an Idol is recognized as a juristic
person but since it is not strictly speaking a living
person.
A gift to an Idol is outside the scope of this Act;
therefore registration is not necessary.
Gift to an Idol may be oral.
Gift to minor: It is a valid gift.
In a case the gift was made to a specific named minor,
and the property was looked after by the minors
father and he cannot transfer the same to any other
child of him.
Let alone be to any other wife child.
The property cannot be transferred as that property
devolves only on the minor son not to any other
persons.
 S.124 Gift of existing and future
property
A gift comprising both existing and future property is void
as to the latter.
Example: A is a owner of a house.
A had contacted to purchase a piece of land adjacent to
this house but sale in his favor is yet to be completed.
A makes a gift of both the properties to B.
Gift of house is valid.
Even though the land was acquired subsequently by A
but not valid.
Gift of future property is merely a promise which cannot
be enforced at law.
Gift of future income of a property before it had accrued
would also be void under this section.
 S.125. 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.
Gift may be made to two or more persons
jointly.
But, for validity of such gift, acceptance by all
the donees is necessary.
 If any donee is not competent to accept the
gift, acceptance on his behalf must come from
his guardian.
In this section a gift is made to several donees
of whom any one donee does not accept the
gift, the gift on his part only, is void.
Gift in favor of others stands valid.
If a gift is made to two donees jointly with the
right of survivorship is valid and upon death of
one the surviving donee takes the whole.
 S.126. When gift may be suspended or
revoked:
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
(save want or failure of consideration)
in which, if it were a contract,
it might be rescinded.
save aforesaid, a gift cannot be revoked.
Nothing contained in this section
shall be deemed to affect the rights of
transferees for consideration without notice.
 Illustrations
(a) A gives a field to B, reserving himself with Bs
assent, the right to take back the field in case B
and his descendants die before A. B dies without
descendants in As lifetime, A may take back the
field.
(b) A gives a lakh of rupees to B, reserving to
himself with Bs assent the right to take back at
pleasure Rs.10,000 out of the lakh. The gift holds
good as to R.90,000, but is void as to R. 10,000
which continue to belong to A.
 Tila Bewa v. Mana Bewa
AIR 1962 Ori 130
Brief Facts: The defendant/respondent is the
mother-in-law who has gifted away the suit lands
in favor of the plaintiff daughter-in-law, by a
registered deed of gift on May 10, 1951.
The plaintiff remained in possession of the suit
lands and lived with her husband Natabar who
died in 1953.
After his death the plaintiff lived with her
mother-in-law till 1954.
The plaintiff having been neglected by the
mother-in-law left for her fathers house.
 Thereafter the plaintiff applied for mutation in
respect of the suit lands.
On May 31, 1954 the mother-in-law executed
a deed of cancellation of the gift deed.
Thereafter, the suit was filed by the plaintiff
for declaration of title and possession in
respect of the suit lands.
Issues: Whether the gift can be revoked or not
for not meeting the conditions made in the
deed?
 Observations: The mother-in-laws defense is that her
son Natabars first wife, after marriage, did not come
to live with him.
Thereafter she got her son married to plaintiff.
During the marriage negotiations, the defendant
executed the deed of gift, in order to induce the
plaintiff to come and live with her son.
That it was a conditional gift to the plaintiff on
condition that the plaintiff will maintain the defendant;
Having failed to maintain the defendant- according to
her she is entitled to revoke the deed of gift.
Further the plaintiff having re-married, she is not
entitled to the property under the deed of gift.
 The points, urged on behalf of the plaintiff were
that the document having been registered and
attested as required u/S.123 of the TPA, the gift
became complete;
It cannot be revoked unless there is an
agreement between the donor and the donee
that on the happening of a specified event, which
does not depend on the will of the donor of the
gift, it shall be suspended or revoked in S.126 of
the TPA.
On a plain reading of the document itself, it does
not provide that the mother-in-law was to remain
in possession of the gifted lands during her life-
time.
 The well settled legal position, based on authorities, is
that a gift, subject to the condition that the donee
should maintain the donor, cannot be revoked u/S.126
of the TPA for failure of the donee to maintain the
donor.
Firstly for the reason that there is no agreement
between the parties that the gift could be either
suspended or revoked.
Secondly, this should not depend on the will of the
donor, again, the failure of the donee to maintain the
donor as undertaken by her in the document is not a
contingency which should defeat the gift.
All that could be said that the default of the donee in
that behalf amounts to want of consideration.
 It is not open to a settler to revoke a settlement
at his will and pleasure and he has got to get it
set aside in a court of law by putting forward such
pleas as bear on the validity of a deed of gift.
The fact that there is a clause in the deed that the
donee should maintain the donor, does not show
that the donor continued to be the beneficial
owner.
If the terms of the gift deed were that there had
been an absolute transfer of the property in favor
of the donee, such a direction for maintenance
shall be regarded only as an expression of pious
wish on the part of the donor.
 On the aspect of pious wishes, the legal position is that
where a gift deed, after the operative portion of the
deed, provided that the donee was to render services
to the donor and to meet the donors funeral
expenses, such directions are only pious wishes and do
not give any right to the donor to revoke the gift if the
conditions are not observed.
On a plain reading of the document, it is clear that the
defendant donor makes a complete gift of the suit
lands in the operative portion of the document, making
the plaintiff full owner in possession from the date
thereof Aja dina than sampurna malik dakhlak karai
(in vernacular)
 In respect of the suit lands, that the defendant
expresses her pious wish later on in the document to
the effect that the plaintiff would render to the
defendant Sebadharma and Bharan Poshan, that is to
say, to render to the defendant services and
maintained her during her lifetime and she further
expressed a wish that after her death the plaintiff
would perform her funeral rites.
Then the document ends, by providing that the
defendant or her heirs will not have, in any way any
right to the suit lands and if they claim any right then
on the strength of this document such claim will be
invalid in courts of law.
 In the last sentence it was stated that the
plaintiff will not be able to sell or mortgage
without the consent of plaintiffs husband and
during the life time of the husband. If she
does so, it will be invalid.
Thus, reading the document as a whole, it is
clear that it wan an out and out gift, and that
the directions as to her maintenance and
Sebadharma are only pious wishes expressed
by the defendant in the document.
 In response to the defendants counsel in our view there
having been no specific issue as to the alleged coercion,
undue influence, fraud, mistake or misrepresentation as
alleged challenging the deed of gift as altogether a void
document has no substance.
In the present case, as is clear from the document itself,
there is no agreement that on failure on the part of the
plaintiff to perform any of the conditions, namely,
Sebadharma etc., the gift will be invalid.
In other words, there must be a defeasance or default
clause in order to make the gift revocable;
If there was a condition that on failure to perform any of
the conditions the gift will be void, then certainly the gift
could have been revoked.
The document does not make any provision to that effect.
 Here, the defendant cancelled the gift- as appears from
the deed of cancellation, in apprehension that the
plaintiff might waste the property by transfer, it is not
the defendants case that by reason of the plaintiffs
having failed to perform her Sebdharma etc., that she
revoked the deed of gift.
It is, however, expected that the plaintiff will respect
the pious wishes of the defendant that the plaintiff will
perform her Sebadharma in the manner, that is
possible under the circumstances and also carry out
her other obligations as contained in the deed of gift,-
all out of the income of the suit lands, in terms of the
deed of gift.
 Conclusion: As per the observations above it is
declared that the plaintiff is entitled to
immediate possession of the suit lands.
The result is the appeal is allowed.
Cross appeals are dismissed.
 S.127 Onerous gifts
When a gift is in the form of a single transfer to the same
person of several things of which one is,
and others or not,
burdened by an obligation,
the donee can take nothing by the gift unless he
accepts it fully.
Where a gift is in the form of two or more separate and
independent transfers to the same person of several
things,
the donee is at liberty to accept one of them and refuse
the others,
although the former may be beneficial and the latter
onerous.
Onerous gifts to disqualified person:-
A donee who is not competent to contract and
accepting property burdened by any
obligation
is not bound by his acceptance.
But if, after becoming competent to contract
and being aware of the obligation,
he retains the property given,
he becomes so bound.
 Illustrations
(a) A has shares in X, a 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 the shares in Y.
He cannot take the shares in X.