Saturday, 2 June 2018

NOTES ON GIFT ( S 122-129 of Transfer of property Act)

Gift defined ( S 122)
A gift is the transfer:
- of certain existing movable or immovable property,
-made 1) voluntarily,and
2)without consideration,
- by one person called the donor to another called the donee,and
- accepted by or on behalf of donee.
Such acceptance must be made during the life-time of donor,and while he is still capable of giving. If the donee dies before acceptance,the gift is void.
Gift how effected( S 123)

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A gift of
a) immovable property must be effected by a registered instrument,signed by or on behalf of the donor,and attested by at least two witnesses.
b) Movable property may be effected either by registered instrument signed and attested as above or by delivery.
Requisites of a valid gift-
1) There should be a donor and a donee.
2) Subject matter of gift must be certain and existing and capable of transfer.
3) The gift should be made voluntarily and without consideration.
4) There should be a transfer on the part of donor.
5) There should be an acceptance by or on behalf of donee during his life-time.
6) The acceptance must be at a time when the donor is alive and capable of giving.
7) Donor and donee must both be living persons.
8) When the property is immovable, there must be a registered instrument properly attested.
9) in case of movable property,there must be either a registered instrument properly attested or delivery of possession.
10) There can be no gift of future property.
11) Gift should not be made under undue influence,duress etc.
12) registered instrument is not necessary to validate gift of immovable property by muslim person.
Kinds of gift
1) void gift
The following gifts are void viz-
1) Gift made for an unlawful purpose,
2) Gift depending on a condition,the fulfilment of which is impossible or forbidden by law.
3) Where donee dies before acceptance.
4) Gift by a person incompetent to contract that is a minor, lunatic etc.
5) A gift comprising existing and future property is void as to the latter.
6) 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.
7) 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.
Onerous gift
A gift may not always be of a beneficial character,but may at times burdened with an obligation. Said gift is known as onerous gift.
Where a gift is in the form of a single transfer to the same person of several things,of which one is ,and the others are not burdened by an obligation,the donee can take nothing by the gift unless he accepts it fully.
Onerous gift to disqualified person
If a donee who is not competent to contract accepts property burdened by any obligation, he 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.
Universal donee
A universal donee is one to whom the donor's whole properly is given and who subsequently becomes liable for all the debts due by and liabilities of the donor at the time of gift to the extent of properly comprised in the gift.
Revocation or suspension of gifts
A gift once made irrevocable except in the following two cases:
1) A gift is revocable if donor and donee have agreed that on the happening of a specified even( not depending upon the will of donor),gift should be suspended or revoked.
2) A gift can also be revoked in those cases in which a contract can be rescinded.(for example, for fraud, misrepresentation etc)
These rules do not however effect the rights of a transferee for consideration without notice.
Saving of donatio mortis causa and muhammadan law
S 129 of the Act provides that nothing in this chapter relating to gifts
1) relates to gifts of movable properly made in contemplation of death(that is donatio mortis causa;or

2) shall be deemed to affect any rule of muhammadan law.

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