Gift Under Transfer Of Property Act | Essential Elements Of Gift | The National TV
- by Dhyutisha-Rawat
- May 22, 2020 20:21
Gifts under the Transfer of Property Act
The gift has been defined under Section 122 of the Act, which states that 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 donee, and accepted by or on behalf of the donee.
Acceptance when to be made- such acceptance may 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.
The gift is the transfer of ownership without any type of consideration. The gift is a gratuitous transfer. A gratuitous transfer may take place between 2 living persons, or it may take place only after the death of the transferor. Thus, a gift can be of either of 2 types a) inter vivos( between living persons) b) testamentary. Gift testamentary is called a will, which is a transfer by operation of law and is out of the scope of the Transfer of Property Act. Gift Mortis causa (gifts made during the apprehension of death) are also excluded from the scope of the Act. Thus, provisions of the Act are applicable only to gifts inter vivos.
Gifts can consist of both moveable and immoveable property. The transferor is called the donor and the transferee is called done. The donor must be a competent person I.e., he must have the capacity to contract. Gift by a minor or insane person is void.
Donee need not be a competent person. He may be any person in existence at the date of making gifts. A gift made to a minor or insane person or even in favor of a child in the mother’s womb is valid provided it is lawfully accepted by a competent person on his(her) behalf. A gift made to the public, in general, is void.
There are 5 essential elements of gift:-
- It should be a transfer of ownership.
- The property must be in existence.
- The transfer should be without any consideration
- The transfer is made voluntarily, i.e., with free consent.
- A gift must be accepted by the transferee.
The gift should be given of absolute interest. All the rights and liabilities of the property will be passed to the donee. The gift may also be made subject to certain conditions, but the conditional gift must not be against any of the provisions under Section 10-34 of the Act.
Property can be moveable or immoveable. The subject matter of the gift must be in existence. The gift of future property is void.
A gift is always gratuitous. Ownership has to be transferred without any consideration. Even a very small or negligible property or sum of money by the transferee in consideration of the transfer of ownership in a property would make transactions either a sale or exchange. Property transferred in consideration of love or affection is a transfer without consideration, hence a gift.
The gift must be always voluntarily given i.e., given with free will and free consent. It should be free from any force, undue influence, or coercion. The burden of proof for such gifts lies upon donee. Where a question of good faith is raised with respect to a transaction, the burden of proof is on the party who is in the position of active confidence.
The gift must be accepted by the donee. If he does not give consent for a gift, the property cannot be bestowed upon him as a gift. Where a property is non-beneficial or onerous( gift of such property, the burden of liability e.g., revenue or taxes, etc. exceeds its actual market value). Thus, to protect the donee from the forceful gift of onerous nature or non-beneficial nature, his acceptance is necessary. Where done is incompetent to contract e.g., a minor or insane, gift must be accepted by the guardian of the minor. Where a gift is accepted by the guardian on behalf of a minor, the minor on attaining majority may avoid gift.
Where a donee is a juristic person, the gift must be accepted by a competent authority representing such a legal person. Where a gift is made to a deity, it may be accepted by its agent that is priest or manager.
Thus, a gift should be accepted by the done during the lifetime of the donor and while he is capable of giving. If the gift is accepted during the life of the donor but the donor dies before registration and other formalities, the gift is deemed to be accepted and valid.
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