GIFT

Sasi K.G.

01. INTRODUCTION

As per section 122 of the Transfer of Property Act, 1882 “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 the donee, and accepted by or on behalf of the donee. Before going deep into the topic let us consider some facets of gifts.

02. GIFTS

01. Definition of Gift

Black's Law Dictionary defines ''GIFT''  as a voluntary transfer of personal property without consideration. A parting by owner with property without pecuniary consideration. A voluntary conveyance of land, or transfer of goods, from one person to another, made gratuitously, and not upon any consideration of blood or money. Section 122 of the Transfer of Property Act, 1882 defines “Gift” as the transfer of certain existing moveable or immoveable 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.

02. Oral Gift of an Immoveable Property

  Section 123 of Transfer of Property Act mandates that a gift of immovable property, which is not registered, is bad in law and cannot pass any title to the donee. Any oral gift of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any title at all.

03. Registration of Gifts whether mandatory

Under Section 123 of the Transfer of Property Act, a gift of property, which is not registered, is bad in law and cannot confer title to the donee. Gift Deed should be stamped and registered as required. Mere delivering possession without a written instrument cannot confer any title. A deed cannot be dispensed with even for a property of small value. Attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a gift of property is invalid without a registered instrument. A gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan.

04. Gift under Indian Contract Act

There are a few provisions available under Indian Contract Act on gifts.

Consideration is one of the essential elements of a valid contract. The requirement of consideration stems from the policy of extending the arm of the law to the enforcement of mutual promises of parties. A mere promise is not enforceable at law. For example, if A promises to make a gift of Rs.500 to B, and subsequently changes his mind, B cannot succeed against A for breach of promise, as B has not given anything in return. It is only when a promise is made for something in return from the promisee, that such promise can be enforced by law against the promisor. This something in return is the consideration for the promise. However if A has actually executed the gift deed it is valid.

Consideration may move from the promisee or any other person, so that a stranger to the consideration may maintain a suit. In Chinnaya v. Ramaya (1882) 4 Mad. 137, a lady by a deed of gift made over certain property to her daughter directing her to pay an annuity to the donor's brother as had been done by the donor herself before she gifted the property. On the same day, her daughter executed in writing in favour of the donor's brother agreeing to pay the annuity. Afterwards the donee (the daughter) declined to fulfil her promise to pay her uncle saying that no consideration had moved from him. The Court, however, held that the uncle could sue even though no part of the consideration received by his niece moved from him. The consideration from her mother was sufficient consideration.

The general rule is that an agreement made without consideration is void. But Section 25 of the Indian Contract Act lays down certain exceptions which make a promise without consideration valid and binding. Thus, an agreement without consideration is valid;

1.    If it is expressed in writing and registered and is made out of natural love and affection between parties standing in a near relation to each other; or

2.    If it is made to compensate a person who has already done something voluntarily for the promisor, or done something which the promisor was legally compellable to do; or

3.    If it is a promise in writing and signed by the person to be charged therewith, or by his agent, to pay a debt barred by the law of limitation.

4.    Besides, according to Section 185 of the Indian Contract Act, consideration is not required to create an agency.

5.    In the case of gift actually made, no consideration is necessary. There need not be nearness of relation and even if it is, there need not be any natural love and affection between them.

A parent stands in a fiduciary relation towards his child and any transaction between them by which any benefit is procured by the parent to himself or to a third party, at the expense of the child will be viewed with jealousy by Courts of Equity and the burden will be on the parent or third-party claiming the benefit of showing that the child in entering into the transaction had independent advice, that he thoroughly understood the nature of transaction and that he was removed from all undue influence when the gift was made (Marim Bibi v. Cassim Ebrahim (1939) 184 I.C. 171 (1939) A.I.A. 278).

05. Gift under Hindu Personal Laws

01. A gift to a Hindu woman

A gift to a Hindu woman is subject to the following constraints.

1.                  Any gift to women under Hindu Law is subject to special rules of construction.

2.                   Whether such gift passes an absolute estate or limited estate depends upon the terms of the grant.

3.                  That too, it depends upon the expressions used in the terms of the grant. (Shaliq Ram v. Charanjit (1930) 57 IA 282)

4.                   Under partition or in lieu of maintenance, a Hindu woman acquires an absolute estate[i].

5.                  Where the property is acquired without pre-existing right such as under a Will, gift, decree or award, her estate depends upon the terms of the instrument.

6.                  A  Hindu , whether belonging to the Mitakshara or Dayabhaga School, can make  a gift of his/her separate as also self acquired estate subject to the claims of those entitiled under the Hindu Adoption and Maintenance Act.

7.                   No sooner does the donor relinquish his right in the property followed by delivery of possession and acceptance by the donee than a gift is completed.

8.                  See sections 18 to 22 as wife, widowed daughter-in-law, minor illegitimate children, aged parents and others.

9.                  A Mitakshara coparcener has no power to make any gift of his coparcenery interest except small gifts based on affection.

10.               The right  of a wife or widow for maintenance attaches to her status so she can pursue the property even in the hands of a stranger acquiring the same with notice of her claim. (Radha bai v. Gopal, AIR 1944  Bom 50).

02. Important conditions of a valid gift under Hindu Law

i)                    Relinquishment of one's proprietory right in the property. Yet it should be without any consideration.

ii)                  Merely registering the gift deed does not afford to pass the title of the property.

iii)                 Creation of right of any person must be completed by acceptance.

iv)                 A gift is totally different from a surrender by a Hindu widow where she does not in fact or in law purport to transfer any interest in the property surrenders.

v)                  In addition to that in the case of Karunamoyee v. Maya Moyi AIR 1948 Cal. 84, it was observed that the widow simply withdraws herself from the estate and the reversioner steps into the inheritance as a matter of law.''

vi)                 Yet, in the case of Narbada Bai v. Mahadeo, it was held that in case of transfer of the whole estate, the reversioner takes the same subject to the liability for her maintenance. It is thus vividly known that the reversioner is responsible for her debts, if she relinquishes the same.

vii)               Where delivery of possession is enough to complete the transaction of a gift, is abrogated under section 123 of the Transfer of Property Act. However, the restrictions on power to enter into the transaction of gift under personal law exist without any change.

06. Gift under Islamic Laws

01. Hiba or Oral Gift

A hiba has the following features.

1.                  A hiba (oral gift) is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately.

2.                  In the case of a gift of usufruct (Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manqfi may thus be transferred by the donor during his lifetime by gift or by bequest and be the subject of gift even though they are not in existence at the time of the gift.

3.                  In view of section 129 of the Transfer of Property Act, it is clear that the rule of Mohammadan Law as to gifts is not affected under the said Act.

4.                  Generally, this rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a gift of immovable property.

5.                  In Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors. (2009) 6 SCC 160 it was held thus: -"15. We may notice the definition of gift as contained in various textbooks. In Mulla's Principles of Mohammadan Law the "hiba" is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines of Muhammadan Law defined "gift" in the following terms: "A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will."[ii]

6.                  In any gift by a Mohammedan, three essential requirements have to be complied with for a valid gift: (i) Declaration of the gift by the donor. (ii) Acceptance of the gift expressed or implied by or on behalf of the donee. (iii) Delivery of such possession of the subject of the gift by the donor to the donee. it was further observed that '' since the deed itself makes it clear that upto the date of the execution of this deed, the executant was in possession, and there can be no oral gift without possession. Therefore, this document cannot be constituted to be a memorandum of gift but it is a gift deed itself.'' (Ashiq Ali and Ors.  v.  Smt. Rasheeda Khatoon and Anr. 2005 (2) AWC 1342)

7.                  It was held in the case of  Ashiq Ali and Ors.  v.  Smt. Rasheeda Khatoon and Anr. 2005 (2) AWC 1342 that '' in view of the provision under Section 129 of the Transfer of Property Act, the provision of Section 123 of the Transfer of Property Act shall not affect the validity of the gift under any rule of Mohammedan Law, so if an oral gift is there and the aforesaid three requirements are fulfilled, it cannot be ignored on the ground that a gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan.

8.                  Registration of a gift deed cannot cure a defect, as to condition of delivery of possession.

9.                  Mohammedan law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors.

10.               The fundamental rule of Mohammedan law as to gifts is that "the donor should divest himself completely of all ownership and dominion over the subject of the gift.

11.              There must be a delivery of such possession as the subject of the gift is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case.

12.               As to delivery of possession is concerned, irrespective of actual or constructive, the ultimate test of the delivery of possession is to see whether the donor or donee reaps the benefit.

02. Revocation of gift deed under Mohammadan Law

Under the circumstances mentioned below, a Mohammadan can revoke a gift even after delivery of possession:

i)                    when the gift is made by a husband to his wife or by a wife to her husband;

ii)                  when the donee is related to the donor within the prohibited degrees;

iii)                 when the gift is Sadaka (i.e. made to a charity or for any religious purpose;

iv)                 when the donee is dead;

v)                  when the thing given has passed out of the donee's possession
by sale, gift or otherwise;

vi)                 when the thing given is lost or destroyed;

vii)               when the thing given has increased in value, whatever be the cause of the increase;

viii)             when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and

ix)                 when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

03. Deference between Hiba and Gift

In Muhammadan Law gift is generally termed hiba. There are some basic differences between the Hiba in Islamic Law and the Gift in the English Law which forms part of the Transfer of property Act, 1882.

HIBA (The  Mohammedan law)	GIFT  (The English law)
As to a valid gift, under Mohammedan law, three essentials conditions are required: (i) declaration of gift by the donor (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of gift.	Rights in property, under The English law, is classified by a division on the basis of immoveable and moveable property. The essential conditions of a valid gift are (i) The absence of consideration; (ii) the donor and the donee; (iii) the subject-matter; and (iv) the transfer; and the acceptance

04. conditions which must be satisfied for a valid gift

Parties - There must be two parties to a gift transaction - the donor and the donee.

The Donor

Donor's powers are unrestricted in Muslim law-A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to someone after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Muslim law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. While giving a hiba a muslim donor must fulfill the following conditions. The donor must have attained the age of majority - Governed by Indian Majority Act 1875; must be of sound mind and have understanding of the transaction; must be free of any fraudulent or coercive advice as well as undue influence; must have ownership over the property to be transfered by way of gift. A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the donee. Gift by a person in insolvent circumstances is also valid provided that it is bona fide and not merely intended to defraud the creditors.

Extent of Donors right to gift

General rule is that a donor‟s right to gift is unrestricted. In Ranee Khajoorunissa v. Mst Roushan Jahan 1876, it was recognized by the Privy Council that a donor may gift all or any portion of his property even if it adversely affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.

Conditions for Donee

Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also make a lawful gift to a non-muslim. Donee must be in existence at the time of giving the gift; in case of a minor or lunatic, the possession must be given to the legal guardian otherwise the gift is void; gift to an unborn person is void unless the birth of the child took place within 6 months of the gift. However, gift of future usufructs to an unborn person is valid provided that the donee is in being when the interest opens out for heirs. The donee is the person who accepts the gift, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift.

A gift to two or more persons may be a gift to them as jointly. The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are presumed to take as tenants in common It is necessary in Muslim law that the donee should accept a Hiba and possession must be delivered to donee. As Hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. A Hiba and Aria in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.

Acceptance

Acceptance may be made expressly or impliedly by conduct, but acceptance would be unnecessary in a case where the gift is made by a guardian to his ward. Muslim law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a gift in favour of minor. A minor who has attained discretion (sareer) may accept the gift even after it has been rejected. He may also refuse to accept the gift. The words accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A gift can be made to a child en ventre se mere (literally, in his/her mother's belly and refers to a fetus in utero) and could be accepted on its behalf.

Voluntary Delivery of possession

It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case. The donor should divest himself completely of all ownership and dominion over the subject of the gift. The delivery may be constructive or actual. Under the Muslim law it is not necessary that there must be actual delivery of possession to make a gift valid. When a gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that his consent was free and no undue influence or pressure was exercised.

Existence of Property Necessary Also In Case Of Hiba

A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a gift of usufruct (Aria) produce (Manafe) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manafe may thus be transferred by the donor during his lifetime by gift or by bequest and be the subject of gift even though they are not in existence at the time of the gift.

Any oral gift of immovable property cannot be made in view of the provisions of sec. 123 of the Transfer of Property Act 1882. Mere delivery of possession without a written instrument cannot confer any right. Under the Islamic law, an oral gift is permissible. In order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been made. 

Consideration

A gift is a transfer. But it does not contain any element of consideration. Complete absence of monetary consideration is the main, hallmark, which distinguishes a gift from a grant, sale, exchange, or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift. The word 'consideration' has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without 'consideration' of the nature defined in sec. 2(d) of the Contract Act. A gift in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a gift.

Exceptions in delivery of possession

The following are the cases where deliver of possession by the donor to the donee is not required:

Gift by a father to his minor or lunatic son

In Mohd Hesabuddin v. Mohd. Hesaruddin AIR 1984, the donee was looking after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of land;

When the donor and the donee reside in the same house which is to be gifted

In such a case, departure of the donor from the house is not required.

Gift by husband to wife or vice versa

The delivery of possession is not required if the donor had a real and bona fide intention of making the gift;

Gift by one co-sharer to other

Bona fide intention to gift is required.

Part delivery

Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be inferred.

Zamindari villages

Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is impossible. Such gift may be completed by mutation of names and transfer of rents and incomes. The gift may be completed by any appropriate method of transfering all the control that the nature of the gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to the donee.

Where the donee is in possession

Where the donee is already in possession of the property, delivery is not required. However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the possession and delivers it to donee or does all that is in his power to let the donee take the possession.

05. Revocation under Muslim Law

A Muslim on the other hand can revoke a gift even after delivery of possession except in the following cases:

1. When the gift is made by a husband to his wife or by a wife to her husband.

2. When the donee is related to the donor within the prohibited degrees

3. When the gift is Sadaka (i.e. made to a charity or for any religious purpose)

4. When the donee is dead

5. When the thing given has passed out of the donee's possession by sale, gift or otherwise; or the thing given is lost or destroyed

6. When the thing given has increased in value, whatever be the cause of the increase

7. When the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and when the donor has received something in exchange for the gift Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention of the court of law or by the consent of the donee.

The following gifts, however, are absolutely irrevocable:

1. when the donor is dead

2. when the donee is dead

3. when the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood relative is irrevocable.

4. when donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is revocable

5. when the subject of the gift has been transfered by the donee through a sale or gift

6. when the subject of the gift is lost or destroyed, or so changed as to lose its identity

7. when the subject of the gift has increased in value and the increment is inseparable

8. when the gift is a sadqa

9. when anything as been accepted in return.

06. Void Gifts

The following gifts are void.

1. Gift to unborn person. But a gift of life interest in favor on an unborn person is valid if he comes into existence when such interest opens out.

2. Gifts in future. A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in future is void.

3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a male heir is void.

07. Essentials of Hiba

Thus, the following are the essentials of a valid gift[iii]-

1.                  A declaration by the donor: There must be a clear and unambiguous intention of the donor to make a gift. Declaration is a statement which signifies the intention of transferor that he intends to make a gift. A declaration can be oral or written. The donor may declare the gift of any kind of property either orally or by written means. Under Muslim law, writing and registrations are not necessary. In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul (1994) 5 SCC 476 it was held that under Muslim Law, declaration as well as acceptance of gift may be oral whatever may be nature of property gifted. When the gift is made in writing, it is known as Hibanama[iv]. This gift deed need not be on stamp paper and also need not be attested or registered. [Mahboob Saheb v. Syed Ismail, AIR (1995) SC 1205] In the famous case of Md. Hesabuddin v. Md. Hesaruddin AIR (1984) Pat. 203, where the gift was made by a Muslim Woman and was not written on a stamp paper, Guahati High Court held that the gift was valid.

The declaration made by the donor should be clear. A declaration of Gift in ambiguous words is void. In Maimuna Bibi v. Rasool Mian AIR 1991 Pat 203, it was held that while oral gift is permissible under Muslim law, to constitute a valid gift it is necessary that donor should divest himself completely of all ownership and dominion over subject of gift. His intention should be in express and clear words. According to Macnaghten, “A gift cannot be implied. It must be express and unequivocal, and the intention of donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void when he continues to exercise any act of ownership over it.”[v]

The declaration should be free from all the impediments such as inducement, threat, coercion, duress or promise and should be made with a bona fide intention.

2.                  Acceptance by the donee[vi]: A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a minor. Donee can be a person from any religious background. Hiba in favor of a minor or a female is also valid. Child in the mother’s womb is a competent donee provided it is born alive within 6 months from the date of declaration. Juristic person are also capable of being a donee and a gift can be made in their favor too. On behalf of a minor or an insane person, any guardian as mentioned under the provisions of Muslim law can accept that gift. These include[vii]:

·                     Father

·                     Father’s Executor

·                     Paternal Grand-Father

·                     Paternal Grand Father’s Executor.

3.                  Delivery of possession by the donor and taking of the possession by the donee[viii]: In Muslim law the term possession means only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to see who – whether the donor or the donee – reaps the benefits of the property. If the donor is reaping the benefit then the delivery is not done and the gift is invalid.

The mode of delivery of possession depends completely upon the nature of property. A delivery of possession may either be:

·                     Actual

·                     Constructive

1.                  Actual Delivery of Possession: Where the property is physically handed over to the donee, the delivery of possession is actual. Generally, only tangible properties can be delivered to the donee. A tangible property may be movable or immovable. Under Muslim law, where the mutation proceedings have started but the physical possession cannot be given and the donor dies, the gift fails for the want of delivery of possession. [Noor Jahan v. Muftkhan, AIR (1970) All 170] However, in such cases if it is proved that although, the mutation was not complete and the donee has already taken the possession of the property, the gift was held to be valid. (Alimonassa v. Sudhir Chandra De AIR (1991), Gauhati 13)

2.                  Constructive Delivery of Possession: Constructive delivery of possession is sufficient to constitute a valid gift in the following two situations:

·                     Where the Property is intangible, i.e. it cannot be perceived through senses.

·                     Where the property is tangible, but its actual or physical delivery is not possible.

Under Muslim law, Registration is neither necessary, nor sufficient to validate the gifts of immovable property.  A hiba of movable or immovable property is valid whether it is oral or in writing; whether it is attested or registered or not, provided that the delivery of possession has taken place according to the rules of Muslim Law [Ilahi Samsuddin v. Jaitunbi Makbul. (1994) 5 SCC 476].

Constitutional Validity of Hiba

The question of whether the first exemption was constitutionally valid in regards to the right to equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating the disposition on the grounds of ‘reasonable classification.

It is enough to say that it is now well settled by a series of decisions of this Court that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely[ix]:

(1) That the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and,

(2) That differentia must have a rational relation to the object sought to be achieved by the statute in question.

The classification may be founded on different bases such as, geographical, or according to objects or occupations and the like. The decisions of this Court further establish that there is a presumption in favor of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.

It is well known that there are fundamental differences between the religion and customs of the Mahomedans and those of others, and, therefore the rules of Mahomedan law regarding gift are based on reasonable classification and the provision of Section 129 of the Transfer of Property Act exempting Mahomedans from certain provisions of that Act is not hit by Article 14 of the Constitution.

The most essential element of Hiba is the declaration, “I have given”.  As per Hedaya, Hiba is defined technically as[x]:

“Unconditional transfer of existing property made immediately and without any exchange or consideration, by one person to another and accepted by or on behalf of the latter“.

According to Fyzee[xi], Hiba is the immediate and unqualified transfer of the corpus of the property without any return.

07. Distinction of Gift and Will

Transfer of property made voluntarily without any consideration by one person on the name of the other is gift deed. The donee should accept the property gifted to him. A gift deed is drawn during the lifetime of the donor. If the donor dies before the gift deed is accepted then, the gift deed becomes void. It is important that the property donating as gift deed is earned by the donor or is a part of his share in the ancestral property.

As far as will is concerned it is the legal declaration in which a person drawing the will can name one or any number of persons as beneficiary of his various assets including property and funds. Will comes into play only after the death of the testator.

Gift deed and Will are different as legal instruments. A ‘Will’ is always revocable during the lifetime of the testator, even though it is registered or not whereas, gift deed once given is irrevocable except under certain conditions. The revocable term implies that if a person after drawing a Will changes his intentions; he can again execute a very new Will. However, law does not allow the donor to make a new gift deed or change his decision.

Whereas Section 123 of the Transfer of Property Act brings the gift under the Act’s purview, Section 129 excludes Will from the Act’s purview as it is donations mortis causa.

03. TRANSFER OF PROPERTY ACT, 1882

The Transfer of Property Act 1882 is an Indian legislation which regulates the transfer of property in India. It contains specific provisions regarding what constitutes a transfer and the conditions attached to it. It came into force on 1 July 1882.

According to the Act, 'transfer of property' means an act by which a person conveys the property to one or more persons, or himself and one or more other persons. The act of transfer may be done in the present or for the future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred, including the transfer of immovable property.

04. GIFT UNDER TRANSFER OF PROPERTY ACT

01. Rule against perpetuity and Gift

Section 14 of the Transfer of Property Act, 1882 mandates that “No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.”

01. Perpetuity Period

It is maximum period during which the property may be rendered inalienable. The extent of perpetuity period is the life of any person who is alive at the movement when the deed which creates the interest begins to operate, plus period of 18 years from the time when such designated person dies.

02. Exceptions to the rule against perpetuity

1. Vested interests are not affected by the rule, for when an interest has once existed, it cannot be bad for remoteness.

2. Gifts to charities do not fall within the rule, thus, in case of a transfer for the benefit of the public in advancement of religion, knowledge, health, commerce etc., the rule does not apply. Perpetuity is not repugnant in cases of religious or charitable endowments.

02. Essentials of a Gift under Transfer of Property Act, 1882

Section 122 of the Act defines the term gift.

122. "Gift" defined. "Gift" is the transfer of certain existing moveable 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.

1. Test of Gift

The question whether a document is a gift or a will depends not merely upon its form but the intention gathered from the words used. The usual tests are, the name of the document, its registration, reservation of the power to revoke and the use of the present or future tense. One or two of these tests are not alone sufficient. - Khushalchand v. Trimbak, AIR 1947 Born 49; Esakkimadan v. Esakki Ammo, AIR 1953 Tr-Coch 336. For tests for determining whether a deed is a gift or will, see Ramaswami v. Gopalkrishna, AIR 1978 Mad 54.

2. Essentials or gift- No condition arterwards

To a gift divesting the donor of all his interest in certain property, a condition cannot afterwards be attached. The general rule of law is that a gift to which an immoral condition is attached remains a good gift while the condition is void. - Ram Sarup v. Bela. 6 All 313(PC). See Istak v. Ranchod AIR 1947Bom 198.48 Bom LR 775. An unqualified gift will not be cut down by subsequent words unless they clearly have that effect. Tripurari v. Jagal Tarini 40 IA 87. Where a gift of immovable property is made under the Mabcmeden law, the donee gets title to it, the condition against alienation being repugnant to the gift is void. - State v. Memon Haji, AIR 1953 Sau 180.

3. Gift, whether transfer

A gift is a transfer of ownership and, therefore, where the owner of certain Government promissory notes endorsed them to his son but reserved to himself the right of enjoying the interest during his lifetime, and in his will treated them as his own, charging the income there of with certain bequests to be paid after his death, held that it was really a benami transaction and that no gift was intended. - Nawab Ibrahim Ali Khan v. Ummat-ul-Zohra 19 All 267 (PC). But where the plaintiff purchased a property for and in name of the defendant who had rendered some service to him, and the defendant was thenceforth in possession of the property and received the rents and profits, held that the right inference from the facts was that the property was not held by the defendant benami, for the plaintiff, but belonged to the defendant, it being intended as a gift to him for his services-Ram Narain v. Muhammad, 26 Cal 227 (230,231) (PC). See also Ismail v. Hafiz. 33 Cal 773 (784, 785) (PC). Where a taluqdar executed a deed of Gift, in favour of his minor son, of the whole of his estate reciting in it that the estate was heavily indebted and that he desired to put it under the superintendence of the Court of Wards to liquidate those debts, such recital was not inconsistent with the genuineness of the gift and could not make the deed of gift a fictitious one. - Ram Bharose v. Rameshwar, AIR 1938 Oudh 26 (29), 171 IC 481. Where the operative part of a release deed intended to transfer whatever right, title and interest the executant had in it, it must be held to be a deed of gift. - Satyesh v. Rani Banerji, AIR 1977 Cal 509.

The question whether what is transferred has in truth been gifted or not depends upon the actual intention of the parties and the facts of the particular case. - Istak v. Ranchod AIR 1947Bom 198.48 Bom LR 775. Where there has been a clear intention to make an out-and-out gift, but the intention has failed for want of transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift will fail. – Manchershaw v. Ardeshir 10 Bom LR 1209; NathaGulab & Co. v. Scheller, 25 Born LR 599, AIR 1924 Bom 88.

Where one pays a sum of money to his brother, it does not amount to a gift, if the money is paid in consideration of the latter giving up his claim, however imaginary, to the property of the former. - Abdul v. Vishwanathan, AIR 1950 Mys 33 (FB). Where the husband deposited certain ornaments with a bank: for safe custody in the joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not amount to a gift, as the husband retained dominion over the property - Chandramani v. Rama Shankar AIR 1951 All 529, 1950 AU 932. Where a purchase has been made in the name of a concubine with the funds of her paramour, it is for the concubine to prove that it was made for her, as the doctrine of advancement does not apply in India-Shiva Kumari v. Udeya Partap, AIR 1947 All 314, 1947 AU 144. See also Chandramani v. Rama Shankar. supra. Where a person keeps money in fixed deposit in the name of his niece, brought up and given in marriage by him, there is an inference of gift in favour of the niece. - Raghuraj Kishore v. Uttam Devi, ILR (1966) 1 All 111

Consideration should not be confused with motive. Where the motive behind the deed of gift was unequivocal to give the transferee a title which would act as a safeguard against any claim for pre-emption the transaction for that reason cannot be called a sale. - Hari Singh v. Kallu AIR 1952 AlI.149. Where the owner stated: "Now I have gifted the above mentioned land with all rights appurtenant thereto (mae jumla haq haqooq): held that the wording was sufficient to divest the donor of all rights which he possessed including the right to shamiliat. - Bhim Singh v. Chandgi, AIR 1953 Punj 135. Where the dispositive words are clear and an absolute estate is given, the fact that the purpose of the gift is stated to be for maintenance of the donee, it does not follow that a life estate is given. - Yadeorao v. Vithal Shamji AIR 1952 Nag 55. But where a person settles an annuity upon his alleged wife, the settlement cannot be construed to be a contract for consideration of love and affection, but is a gift pure and simple. Gopal Saran v. Sita Devi, AIR 1932 PC 34(35), 36 CWN 392.

The creation or imposition of an easement is not a transfer of property, and does not amount to a gift. - Sital Chandra v. Delanney, 20CWN 1158 (1163,1164),34 IC450.

The order to pay annual allowance for past years by the Ruler of an Indian State in favour of his sons was merely an order for ex gratia payment in the nature of a gift which could not be enforced against the State after merger as a legally enforceable obligation. - Dhiraj v. State of Rajasthan, AIR 1987 SC 82.

Where under the gift or in an award on the basis of compromise between the parties in a suit for cancellation of gift no share of the property was given to X. X cannot claim any share in the property because X has no title therein. - Gian v. Rabindra, AIR 1987 SC 240.

4. Property

This chapter deals only with gifts of tangible property; and so a release of a security without consideration does not fall under this chapter: because, though the release of the security may be said to be a gift, still the gift is not one of tangible property. - Mohim Chandra v. Ram Dayal, AIR 1926 Call70.

When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the gift of such title to 'get on the register is complete when a deed of gift duly attested and registered together with the shares and blank transfer form signed by the donor is handed over to the donee. Vasudev v. Pranlal, AIR 1974 SC 1728, relying on M. P. Barucha v. Sarabhai & Co., AIR 1926 PC 38.

5. Existing property

In order to constitute a valid gift there must be an existing property. In case of gift of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of gift in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit.of the donor and are not with such companies or firms, gifts might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make valid gift if sums or funds are not available. I.T.C. v. R. S. Gupta AIR 1987 SC 785,788: 1987 J.T340: (1987) 30 Taxman 546A; see also CED. v. Vithal AIR 1987 SC 791: 1987 JT 348. A donation cannot be made of anything to be in future (e.g. future revenues of a property). –Amtulnissa v. Mir Nurudin Il.R 22 Born 489. See also sec. 124.

6. Voluntarily

In this section the word "voluntarily" bears its ordinary popular meaning denoting the exercise of the unfettered free will, and not its technical meaning of without consideration. – U. Thita v. Areseinna, (1939) 199 IC 903, AIR 1939 Rang 76, relying on A. G. v. Ellis, (1895) 2 QB 466; In re Wilkinson, 1926 Ch 842; Art Union v. Overseers of the Savoy, (1894) 2 QB 609; and Churchwardens of Birmingham v. Shaw, (1849) 10 QB 868. When a gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon him by the party in whose favour the gift is made. – Phul Chand v. Lakkhu, 25 All 358; Sarba Mohan v. Manmohan, 37 CWN 149 (150). Delivery of possession can prove the assent of the donor. - Mukhtiar v. Golab. AIR 1977 Punj 257. But where a gift which has been found to be not unconscionable is impeached as being procured by the use of undue influence, it is for the person attacking the gift to prove that the donee did use his position to obtain an unfair advantage over the donor. - Forman Ali v. Uzir Ali, AIR 1938 Cal 157 (159).42 CWN 14, following Poosathurai v. Kannappa, 43 Mad 546, 47 IA 1,55 IC 447. In case of a gift tainted by undue influence and imposition, even an innocent third party cannot retain the benefit, if he is a mere volunteer. But if he is a bona fide purchaser for value without notice, there is no obligation for restitution on his part. - Forman Ali v. Uzir Ali, AIR 1938 Cal 157 (159).42 CWN 14. If the parties stand in a confidential relation to each other, a gift cannot be supported unless it can be shown that the donor had competent and independent advice, and was in a position to exercise a free unfettered judgment with full knowledge of what he was doing. In such a case, the law throws the burden of proving good faith on the donee. - Phul Chand v. Lakkhu, 25 All 358. Where a person donates an amount to the Government for a specific purpose, which fails, the donor is entitled to the refund of the amount. - State of U. P. v. Shamsundar Ramchandran, AIR 1961 All 418.

If gifts are made by a pardanashin lady, the strongest and most satisfactory evidence ought to be given by the party who claims under the deed that the transaction was a real and bona fide one, and was understood by the lady, that she had opportunity to take independent advice and that she was a free agent and executed the deed of her own free wiIl. - Mahomed Bakhsh v. Hosseini Bibi, 15 Cal 584 (PC); Wazid Khan v. Ewaz Ali Khan, 18 Cal 545 (PC); Khatija v. Ismail 12Mad . 380; Mariam Bibi v. Sakina.14 AlI 8; Hakim Muhammad v. Najiban, 20 All 447 (PC).

If the donor be an old and infirm woman, the burden will lie very heavily upon the donee to show that the deed of gift was voluntarily executed by her with the full knowledge of its contents, and that she did so without any pressure or solicitations which might amount to an exercise of undue influence on her. - Rajaram v. Khandu 14 Born LR 340, 15 IC 529. The onus on the donee to prove that the gift deed executed by an unlettered old man with feeble health and weak eyesight was a voluntary transaction - Ajmer v. Alma AIR 1985 P&H 315. The law as to undue influence is the same in the case of a gift as in the case of a contract – Subhas Chandra v. Ganga Prosad, AIR 1967 SC 878. But where it was found that the donor was fully able to manage her own business and transacted all her business herself, and even went to the court and to the registration officer in connection with litigation and registration of deed, the mere fact that she was a very old woman with the natural infirmity incident to her age ought not to raise any presumption of undue influence in respect of a deed of gift executed by her. - lsmail Mussajee v. Hafiz. 33 Cal 773 (783) (PC).

7. Undue influence and fraud

An influence of coercive nature, devoid of willingness, some acts of overreaching, is known as undue influence. More than mere influence is undue influence. Fraud, on the other hand, 'Suggests concealment of real fact, misrepresentation of facts and some other camouflage to obtain certain benefits. The charge of undue influence and/or fraud is in the nature of criminal charge which must be pleaded clearly and proved by cogent and reliable evidence. It is erroneous to hold that a gift deed in favour of the grandson was executed due to undue influence merely by the fact that the grandson and his wife looked after the donor. - Sukhdeo v. Champa AIR 1985 Pat 89.

8. Without consideration

A gift is a transfer without consideration and if there is any consideration in any shape, there is no gift, A promise to discharge the debts of the transferor is a good and valid consideration, and if a property is transferred in consideration of the transferee undertaking to discharge the debts of the transferor, the transaction cannot be treated as a gift-Anrudh v. Lachhmi 50 All 818, 26 AU 753, AIR 1928 All 500 (503); Kulasekaraperumal v. Pathakully Thalevanar, AIR 1961 Mad 405. But consideration of love and affection or spiritual or moral benefit is not contemplated by this section. The word 'consideration' means valuable consideration, i.e. consideration either of money or money's worth. A gift in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a gift. - Debi Saran v. Nandalal AIR 1929 Pat 591 (593).

A gift does not contain any element of consideration in terms of money. Love, affection, spiritual benefit and other fillial considerations may motivate a donor to make the gift but these are not considerations as understood in law. - Sonia  Bhatia v. State of U.P. AIR 1981 SC 1274. A transfer of some lands to the transferee for services rendered by him during the illness of the transferor is a gift. – See Hiralal v. Gaurishankar, 30 Born LR 451, AIR 1928 Born 250 (251).

Where a gift of a life-estate is made to a person, the donee has disposing power over the rents and profits which accrued due- but were not realized during his lifetime. - Mohini Mohan v. Rash Behan, 41 CWN 495.

Where a mother gifts property to her only daughter who promises to maintain the former throughout her life, the promise is not enforceable in law because the gift has to be for natural love and affection and not for any consideration. - Munni Devi v. Chhoti AIR 1983 All 444. But a deed of gift in respect of a house to Nagar Mahapalika is not vitiated by an undertaking by the donee to pay a token sum of Rs.100 per mensem as maintenance to the donor as that could not amount to a consideration to defeat the gift. - Subhas Chandra v. Nagar Mahapalika AIR 1984 All 288.

9. Who can be a donee

The word "donee" in this section means an ascertained or ascertainable person or persons by whom or on whose behalf a gift can be accepted or refused. This section has no application to a gift to an unascertained number of persons, e.g. the public. - Palayya v. Ramavadhanulu 13 MU 364. A gift may be made to an idol, because according to Hindu law an idol is regarded as a juridical person capable of holding property, though it is only in an ideal sense that the property is so held. - Jagadindra v. Hemanta Kumari, 32 Cal129 (PC); Bhupati Natb Smrititinha v. Ramlal, 37 Call28 (FB). A math like an idol is a juridical person capable of holding property. - Babajirao v. Lakshmandas, Il.R 28 Born 215. But see Ram Kumar Ram Chandra & Co. v.  Com.I.T., U. P. AIR 1966 All 100, where it has been laid down that dedication to a deity is not governed by the T.P. Act A gift to two donees jointly with right of survivorship is valid in law- Cheria Kennan v. Karumbi, AIR 1973 Ker 64. When an individual transfers property to himself for the benefit of others the transaction amounts to a gift. - Naranbhai v. Suleman, (1975) 16 GLR 289.

A gift to a dharma is not valid, as the word' dharma' is too vague and indefinite for the court to enforce the gift. - Devshunkur v. Motiram, 18 Born 136; Morarji v. Nenbai, 17 Born 351; Runchordas v. Parbati, 23 Born 725 (PC). A pious Hindu ordinarily dedicates property to a deity by renouncing his right in a particular property in favour of the idol. That can be done orally, but if there is any document in writing it is registrable - Vide Mukherjea on Hindu Law of Religious & Charitable Trusts 4th Ed. pp. 104-5,159. An endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies provided the settlor has clearly expressed his intention in that behalf - Shanti Sarup v. Radhaswami Satsang Sabha, AIR 1969 All 248.

In gift in favour of deity evidence of sankalpa and samarpana need not be produced. - Bipin v. Rudra, 1977 (2) CWR 762. When a satsangi makes a gift of money to Radha Swami Dayal, a nonjuristic person, the gift is in substance for the benefit of the Agra Satsangis, a registered society, and hence valid, because it is in the nature of a gift to an idol or temple to which T.P. Act does not apply. -  ibid, When A executes a deed of gift in favour of B describing him as his adopted son and the adoption is not established, the gift fails. - Padmabati Dei v. Udayanath Baitharu.1972 (1) CWR 589.

10. Acceptance

The gift must be accepted by the donee or by someone on his behalf. An offer without acceptance by the donee cannot complete the gift, though the donor may in fact believe that it was accepted. - Pudmanand v. Hayes. 28 Cal 720 (PC). Acceptance may be inferred from acts prior to the execution of the deed of gift. - Julakanti v. Appalarajugari, AIR 1958 Andh Pra 213. Mere silence may sometimes indicate acceptance provided the donee knows about the gift, slightest evidence of acceptance is sufficient. Normally a donee is expected to accept a gift which is not onerous. – Narayani Bhanumati v. Karthyayani Lalitha Bhai, 1973 KU 354: 1973 KLT961; V.V. Janaki v. P. P. Para, AIR 1986 Ker 110. A donee cannot claim to be a purchaser in order to invoke the provisions of sec. 54, T. P. Act or of sec. 247 of the Calcutta Municipal Act, 1951. - Bimal Kumar v. Calcutta Municipality, AIR 1978 Ca1420.

What the law requires is acceptance of the gift after its execution, though the deed may not be registered. Anterior negotiations or talks about the gift would not amount to acceptance. The acceptance may be implied, but the facts relied on must be acts of positive conduct of the donee or persons acting on his behalf and not merely passive acquiescence such as standing by when the deed was executed or registered. – Venkatasubbamma v. Narayanaswami. AIR 1954 Mad 215. Acceptance must be made before the death of the donor. - Kesava Kurup v. Thomas Idichla AIR 1969 Ker 21. Where the-land is under the cultivation of the donor, the presence of the donee before the sub-registrar at the execution of the deed is sufficient evidence of acceptance by the donee. -Laxmi Narain v. Om Parkash 1973 RLR 311.

There must be something shown to indicate an acceptance. The acceptance may be signified by an overt act such as the actual taking possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Acceptance may be implied; but the rule of implied acceptance ought not to be extended so far as to hold (as under the English law) that the acceptance will be presumed unless dissent is shown. - Anandi v. Mohan Lal 54 All 534, 137 IC 156, AIR 1932 All 444 (445). Acceptance will be presumed if there is possession, actual or constructive by the donee, In case of zamindary property, mutation of names means delivery possession, and this is undoubtedly proof of acceptance-ibid., but see Sanat Singh v. State of Punjab, 1973 Cur LT 121. In case of gift by husband to wife, the husband's act of taking steps to get mutation in the name of his wife amounts to delivery of possession to the wife, which means acceptance by the wife. The fact that the husband performed certain acts in respect of the property after the mutation did not show that thy husband retained ownership in himself because those acts must be presumed to be acts done by the husband on behalf of his wife-ibid. Where the donee received the deed of gift from the donor after its due execution and presented it for registration, these were sufficient indications of his acceptance of the gift. - Esakkimadan v. Esakki Amma, AIR 1953 Tr-Coch 336. Where the subject-matter of the gift is enjoyed jointly by the donor and the donee, mere possession is not the evidence of acceptance. - Bancha Bhol v. Saria Bewa AIR 1973 Orissa 18. A deed of gift provided that in consideration of the donee foregoing his claim of Rs. 20,000 as per a deed of family settlement and trust made by the donor and for natural love and affection the gift is made and that the donee, if demanded by the donor, shall be bound to pay to the donor Rs. 20,000 by selling a particular property, the gift was void and the donee did not acquire any property under it. - Deba Prasad v. Ashrukana 81 CWN 449.

Where the instrument of gift, duly executed and attested is handed over to the donee, and the donee accepts the same, it may constitute a sufficient acceptance of the gift. - Kalyanasundaram v. Karuppa, 50 Mad 19.3(PC), 31 CWN 509, AIR 1927 PC 42, followed in Venkat Sabba v. Subba Rama, 52 Bom 313 (PC), 30 Bom LR 827, AIR 1928 PC 86; Adhikari Narayanamma v. Adhikari Thabitinaidu, AIR 1964 Orissa 212; Samrathi v. Parasuram, AIR 1975 Pat 140. Failure to stamp a document does not affect the validity of the transaction; it merely renders the document inadmissible in evidence. Therefore where the deed is delivered over to the donee immediately after execution, it would be sufficient acceptance of the transfer by the donee and the deed becomes effectual from the very moment of its execution subject to its being stamped and registered. - Purna Chandra v. Kalipada, AIR 1942 Cal386, 46 CWN 477.

Acceptance may be made while the donor is still capable of giving, and during his lifetime.

The acceptance may be made either by the donee or by anyone on his behalf. A guardian may accept a gift on behalf of his ward. The father may accept on behalf of his minor son. Where the donee is incapable of signifying his acceptance to a gift by reason of age or of his being an impersonal being such as a deity, the acceptance can be made on his behalf by somebody else competent to act as an agent, and acceptance will be presumed' after his possession, actual or constructive, by the donee. - Ram Bharose v. Rameshwar, AIR 1938 Oudh 26 (31), 171 IC 481; Deosaran v. Deoki, AIR 1924 Pat 657; Gangadhar v. Kulathu, AIR 1952 Tr-Coch 47; Jagadindra v. Hemanta 32 Call29 (PC). Thus where the donor is the father and his minor son the donee, and the father applies for mutation of name in favour of  the donee and continues to act in dealing with the gifted property on behalf of the minor as his guardian, there is a sufficient acceptance of the gift on behalf of the minor. - ibid. Where a minor's uncle, by a registered deed, made gift of certain property to the minor, which was already in the posssession of the minor's father, held that the gift to the minor was valid. - Joitaram v. Ramkrishna 27 Born 31 (40). In a Nagpur case it has been held that an acceptance of a gift may be made personally by a minor donee without the intervention of a guardian. - Ganeshdas v. Suryabhan, 13 NLR 18.39 IC 46. Where a gift of a house was made to two minors, which was accepted by the donees' guardians, and since then the donees have been living in the house for 11 years. the mere fact that the donor retained the custody of the deed and kept the house in his name in the municipal records and paid the taxes, does not show that the donor did not intend the gift to be acted upon. - Venkataramayyan v. Nagamma, AIR 1932 Mad 272 (275). Where a gift in favour of the wife and daughters is accepted by the wife, but the donees get their names mutated in pursuance of the deed and retain custody of the deed there is acceptance by all the donees. - Tara Sahuani v. Raghunath Sahu, AIR 1963 Orissa 50.

The mere custody by the donor of the deed of gift does not lead to any adverse conclusion against the donee, especially, where the entire conduct of the donee shows that he accepted the gift and the document was kept in the family-box to which the donee also had access. - Ankamma v. Narasayya, AIR 1947 Mad. 127, (1946) 2 MLJ 357. The acceptance of a gift cannot be inferred from the donee's present possession without the donor's knowledge and intention. - Ram Chander v. Sital Prasad, AIR 1948 Pat 130.

11. Registration of deed after donor's death

It is not necessary for the validity of a deed of gift that it should be registered by the donor himself. Where a Hindu executed a deed of gift in favour of his wife and died, and the deed was subsequently registered at the instance of the widow, held that it was a valid deed of gift within the provisions of this Section 123 of TP Act. - Bhabotosh v. Soleiman 33 Cal 584. Nor is it necessary that the registration should take place during the lifetime of the donor. A gift of immovable property is not invalid merely because the deed of gift may have been registered after the death of the donor. - Hardei v. Ramlal, 11 All 319; Nand Kisnore v. Suraj Prasad, 20 All 392; Kashaba v. Chandrabhagabai, 32 Born 441.

The post mortem registration of a deed of gift by the legal representative of the donor has the same effect as its registration by the donor himself during his lifetime. - Meiyyalu v. Anjalay, 25 Mad 672; Kashaba v. Chandrabhagabai, 32 Born 441. If the donor dies after executing the deed of gift, and the donee does not take any steps to register the deed, the gift fails-See Hiralal v. Gaurishankar, 30 Born LR 451: AIR 1928 Born 250.

A deed of gift registered against the wishes of the donor is valid. And so, where the donor executed a deed of gift and handed over the deed to the donee and the latter proceeded to register the deed, the donor could not bring a suit for injunction against the donee to restrain him from registering the deed. Once a deed is executed and handed over to the donee, the gift is complete. - Venkat Subba v. Subba Ramo. 52 Bom 313 (PC), 32 CWN 708, AIR 1928 PC 86 (87). A gift duly made and accepted is not invalid merely because it is registered afterwards against the wishes of the donor- Parbati v. Baijnath, 9 ALJ 300, 14 IC 61, upheld on appeal in Parbati v. Baijnath, 35 All 3, 16 IC 406. A deed of gift can be registered by the donee after the death of the donor without the consent of the legal representative of the donor. - Venkati Rama Reddi v. Pillati Ramo Reddi, 40 Mad 204 (211) (FB).

Where the deed of gift has been handed over to the donee, the donor has done everything in his power to make the donation effective. Neither death nor express revocation by the donor is is ground for refusing registration by the officer appointed for registration. – Kalyanasundaram v. Karuppa 50 Mad 193 (PC), 52 MLJ 346: 100 IC 105, 31 CWN 509, AIR 1927 PC 42: Venkat Subba v. Subba Ramo. 52 Bom 313 (PC), 32 CWN 708: AIR 1928 PC 86 (87): See also Sudhir v. Tarangini 41 CWN 1201.

A deed of gift of immovable property executed in accordance with the terms of sec. 123, but never communicated to the intended donee and remaining in the possession of the donor undelivered, would not come within the ruling of the Full Bench in Venkata Rama Reddi v. Pillati Rama Reddi, 40 Mad 204, and cannot be compulsorily registered at the instance of the done.- Kalyana Sundaram v. Karuppa, supra.

Where there is a gift of immovables and moveables, but the former fails for want of registration, the latter may be held good if it was not conditional on the validity of the former. - Perumal v. Perumal, 44 Mad 196.

12. Section 6 (h), ban on transfer for unlawful object or consideration, not applicable to gifts

Gifts being without consideration are not hit by section 6 (h) of this Act. - Pyare Mohan v. Narayani AIR 1982 Raj 43; relied on Dwarampudi v. Kumuku AIR 1968 SC 253.

13. Religious endowments, Act not applicable

The provisions of this Act are not attracted to an endowment created for religious or charitable purposes, since this is not a deed of gift in favour of a living object. (R.K. Mission v. Dogar Singh AIR 1984 All 72)

14. Madras Boodan Yagna Act, 1958, provisions of T.P. Act not applicable to

The provisions of the Act show that donations of land to me bhoodan yagna were exempted from the relevant provisions of the Transfer of Property Act and the Registration Act with retrospective effect. - Rajammal v. Mookan AIR 1981 SC 1664.

15. Spiritual organisation, gift to

Where a gift is made in favour of a spiritual organization, the courts would always expect a high degree of proof about the voluntary and genuine character of the transaction. - Philip v. Franciscan Association AIR 1987 Ker 204, 208.

03. Transfer how effected

Section 123 of the TP Act mentions on how a transfer is effected. It runs as follows; “123. For the purpose of making a gift of immoveable 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 moveable 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.”

04. Gift of both existing and future property is void

Section 124 of the TP Act mentions on a gift of existing and future property. Section 124 states that a gift comprising both existing and future property is void as to the latter.

05. Gift to several of whom one does not accept

Section 125 of the TP Act mentions about a gift to several of whom one does not accept. Section 125 states that 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.

06. Suspension and Revocation of Gift

Section 126 of Transfer of Property Act, 1882 deals with when gift may be suspended or revoked. According to it, 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 in which if it were a contract it might be rescinded. Such as aforesaid a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Gift is transfer of ownership without consideration. Like other transfers, gift too can be made subject to certain conditions. Donor may make a gift subject to a condition of it being suspended or revoked. But, such gifts would then be governed by those provisions of this Act which regulate conditional transfers. Accordingly, if a gift is made subject to condition of it being revoked in future the condition must be valid and enforceable under those provisions.

01. Essential Ingredients for Revocation of Gift

Section 126 of the Transfer of Property provides for conditions where a gift can be revoked. The following are  essential ingredients for revocation of gift;

i)                    there must be an agreement between the donor and donee that the gift shall be suspended or revoked on the happening of a specified event;

ii)                  such event must be one which does not depend upon the will of  the  donor;

iii)                 the condition as to the suspend or revocation should be agreed to by the donee at the time of accepting the gift. And,

iv)                 there  must exist a ground , except want or failure of consideration, on which a contract may be rescinded. 

v)                  the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift.

vi)                Section 126 is controlled by sec. 10. As such, a clause in the gift deed completely prohibiting alienation is void in view of the provisions contained in sec. 10.

vii)              A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court of law.

Section 126 lays down two modes of revocation of gift:

(i) Revocation by mutual agreement of donor and donee.

(ii) Revocation by rescission as in the case of contracts.

02. Revocation by Mutual Agreement

Donor and donee may agree that the gift shall be suspended or revoked upon happening of an event not dependent on the will of the donor. The condition revoking the gift must be express; it should not be merely in the form of a wish or desire. In other words, the condition on the non-fulfilment of which the donor may revoke the gift must be expressly laid down in the gift. A gift of certain properties was executed in lieu of the past and future services rendered by donee to donor. But failure of donee to render services to donor or to maintain donor in future, was not specified to be a condition for revocation of the gift deed. The Himachal Pradesh High Court in Mool Raj v. Jamma Devi, AIR 1995 HP 117 held that since the condition for revocation of gift upon unconditional gift and, therefore, cannot be revoked by the donor.

However, even though a condition is not laid down in the gift deed itself, and has been provided under a mutual agreement separately but forms part of the transaction of gift, the condition would be valid and enforceable. (Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340)

The condition upon which a gift is to be revoked must not depend solely on the will of the donor. A gift revocable at the pleasure of donor is no gift at all. The condition or stipulation providing for revocation must have been mutually agreed upon at the time of the gift. If such agreement is made after completion of gift, since the gift has already become absolute, it deed of gift itself. What is necessary is that stipulation and gift both are made at the same time. They might be in two separate documents but must form part of the same transaction.

That is to say, the stipulation must relate to the same gift which is to be revoked.

The condition for revocation of gift is a condition subsequent. It must be valid under the provisions of law given for conditional transfers. The condition totally prohibiting the alienation of property is void under Section 10 of this Act. Therefore, if the gift is made revocable with such condition, the condition itself being void, the gift is not revoked.( Jagdeo Singh v. Nandan Mahto, AIR 1982 Pat. 22)

It is also necessary that the condition upon which the gift is agreed to be revoked must be a condition subsequent the fulfilment of which is not dependant on the will or desire of donor. The condition subsequent must be in the nature if future event beyond the control of right to take back the field in case B and his descendants die before A. Here the condition upon which the field given in gift is to be revoked is a condition depending on uncertain life time, the gift is revoked and A may take back the field.

Where the stipulation provide for revocation of gift at the will or pleasure of donor the stipulation is void and gift is not revoked although such stipulation is merely agreed upon by donor and donee. Gift revocable at the will of donor is void. For example, A makes a gift of one lakh rupees to B reserving to himself with B’s assent the right to take back at his (A’s) pleasure Rs. 10,000/- out of this amount. The gift as to Rs. 90,000/- is valid but as regards Rs. 10,000/- the gift is void, i.e., it shall continue to belong to A. Law shall consider that no transfer of Rs. 10,000/- was made at all.

03. Revocation by Rescission as Contracts

Gift is a gratuitous transfer of ownership made voluntarily. If it could be proved that the gift was not made voluntarily, i.e., the consent of the donor was not free, the gift must be revoked. Gift is always preceded by an express or implied contract; offer by donor and acceptance by donee. If the preceding contract itself is rescinded or revoked there is no question of taking place of transfer (gift) made under it. Accordingly, under Section 126 a gift is revoked also on any of the grounds on which it might be rescinded has it been a contract. Section 19 of the Indian Contract Act provides that “Where consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained.” Thus where the gift is not made voluntarily because of any of the factors mentioned above, the gift may be revoked by the donor. It is to be noted that this section deals with revocation which means rescission or repudiation of gift; it does not deal with cases where the gift is void, e.g., for want of donor’s tide. So where the donor’s consent has been obtained by coercion, undue influence, fraud or misrepresentation the donor has option to repudiate or revoke the gift. If he does not exercise this option, the gift is not revoked. Gift may be revoked on the above mentioned grounds only by the donor, he cannot assign this right to any other person. However after donor’s death, his legal heirs may sue for the revocation of the gift on any one of these grounds.

The period of limitation for the revocation of gifts on the ground of fraud, coercion, misrepresentation or undue influence is three years from the date on which such facts are known to the plaintiff (donor).[xii] The right to revoke the gift on the above mentioned grounds is lost when the donor ratifies the gift either expressly or by his conduct.

04. No Revocation on any other ground

Except on the ground of (a) condition subsequent not depending on the pleasure of the donor and (b) on the grounds justifying of a contract, a gift cannot be revoked on any other ground. A gift deed was validly executed in favour of the donee. It was held that a simultaneous claim by the donor that the gift deed was revoked unilaterally by him and lodged for registration was not valid as there was no participation by the donee. (Sheel Arora v. Madan Mohan Bajaj, AIR 2009 NOC 333 (Bom))

05. Subsequent conduct of donee after acceptance Irrelevant

A father executed a registered deed of gift in favour of his son. He had done it because of love and affection for the son and also to enable him to live a peaceful life. There was no proof of undue influence. The donee remained out of India for a long time. In the meantime the gift deed remained with the donor and he also kept paying taxes. There was no mutation for that period in the revenue records. The Supreme Court held that these circumstances were not sufficient in themselves to show that the execution of the gift deed was not voluntary. The deed could not be rescinded on the premise that it was an onerous gift and that the donee had failed to fulfil the condition for the gift of contributing towards the marriage of the donee’s sister the specified sum. Once a gift is complete, it cannot be rescinded for any reason whatsoever. The subsequent conduct of the donee is not a ground for rescission of a valid gift. (Asokan v. Lakshmikuty, (2007) 13 SCC 210)

06. Transferee for Consideration without Notice

The last paragraph of Section 126 of the Act protects the interest of a bonafide transferee for consideration without notice of donor’s right of revocation. For example, A makes a gift of his house to B with a condition that he shall revoke the gift if B’s son does not take up the studies of law after graduation. B sells the house to C. C has no notice of any such condition. After graduation B’s son does not join the law course. A cannot revoke the gift because C’s interest shall be affected. If C has notice of such condition or that C was a gratuitous transferee, A could have revoked the gift.

Also registration is necessary in all cases of gift of immovable properties and the title cannot pass without there being a registered deed of gift. A gift is valid and complete on registration. Also while dealing with the laws relating to gift we have come across important aspects relating to gift like gift of existing and future property, when gift may be revoked, donation mortis causa etc.

A deed of gift once executed and registered cannot be revoked, unless the mandatory requirement of Section 126 of Transfer of Property Act, 1882 is fulfilled.(Kamalakanta Mohapatra v. Pratap Chandra Mohapatra AIR 2010 Orissa 13)

07. Onerous Gifts

Section 127 of the TP Act speaks about onerous gifts as follows, “127. 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.

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 gift to disqualified person

A donee 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.

(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.

'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee.'' The rule is based on equity, which speaks the person who accepts the benefit of a transaction must also accept the burden of the same. It applies equally to Hindus and Mahomedans. Section 127 of the Transfer of Property Act, 1882 states that 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 done can take nothing by the gift unless he accepts it fully.

08. Universal Donee

A universal donee and his liabilities are described in section 128 of the TP Act as, “128. Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by [xiii][and liabilities of] the donor at the time of the gift to the extent of the property comprised therein.”

Illustration:

 A is father. B is son. A makes a gift of the whole property of his estate to B. A directs B to pay his debts and then B is a Universal Donee. Thus, B is liable to pay all debts of donor.

The foremost condition here  is  the gift should consist of  the whole property of the donor. In case of a gift pertaining to some portion of the property of donor, such donee is not a universal donee.

09. Savings of Donations Mortis Causa and Muhammadan Law

Section 129 of the TP Act provides some savings on gifts by will and gifts under Mohammadan Law as, “Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law [xiv][***].

05. GIFT AND MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

 01. Object of the Maintenance and welfare of Parents and senior Citizens Act, 2007

The object of the 2007 Act is to provide for more effective provisions for the maintenance and welfare of the senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto. The Constitution of India under Article 41 mandates “the state to make effective provision for securing the old age”. Article 46 also states that “Promotion of educational and economic interests of ….other weaker sections: The State shall promote with special care …. of the weaker sections of the people, and shall protect them from social injustice and all forms of exploitation”

Section 23 of the Act reads as follows,

“23. Transfer of property to be void in certain circumstances.-(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2),  action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5."

5. Section 23(1) shows that where, after the commencement of the Act, a senior citizen has transferred his property by way of a gift deed or otherwise, subject to the condition that the transferee shall provide basic amenities and physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the transfer of such property shall be deemed to have been made by fraud or coercion, or under undue influence. Reading of this provision, itself, would show that it is not the legislative requirement or intent that the document evidencing the transfer, either by gift or otherwise, should itself contain an express condition that the transferee shall provide the basic amenities and physical needs of the transfer. On the other hand, if there are evidence to the satisfaction of the authorities under the Act that the requirements of Section 23 are satisfied in a case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate the document. Such an understanding of the section, according to us, would only advance the object of the Act. On the other hand, if the contention now advanced is accepted, that will defeat the very object and purpose of the Act.(Shabeen Martin & Anr v. Muriel & Anr in WA. NO.1851/2016 IN WP(C). NO.8193/2014 of High Court of Kerala)

In the above case High Court upheld its judgment in Radhamani v. State of Kerala 2016 (1) KLT 185.

02. Liability of Heirs of the Deceased Hindu to Maintain Their Aged Parents

Section 21 of the Act, while defining the term “dependants” also speaks about the liability of the relatives under Section 22, to maintain the parents of the deceased son or daughter to the following extent:

“22. Maintenance of dependents:-

1) Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased.

2) Where a dependent has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

3) The liability of each of the persons who take the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

As per the above provision, the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. So, if a Hindu son or daughter who is having the obligation to maintain their parents dies leaving his aged parents and his or her son or daughter who is not a minor, the son or daughter as the case may be, having the obligation to maintain their grandfather or grandmother to the extent they are inheriting the property from their deceased parents. On the other hand, if the son or daughter of the deceased has not obtained any share in the estate of a Hindu dying after the commencement of this Act, the aged parents as a dependent, shall be entitled to maintenance from those who take the estate and not from the son or daughter of the deceased son or daughter as the case may be.

The liability of relatives to maintain their aged relatives shall be in proportion to the value of the share or part of the estate taken by them. Suppose, if the son or daughter or heirs or relative are themselves is a dependent, then the above obligation shall not apply.

Under section 23 certain criteria has been mentioned subject to which the Courts are having discretionary power to grant maintenance. The above legal provisions deal with the rights of the parents alone and not about the senior citizens as mentioned in the Act, 2007.

The above provisions are applicable to Hindus only and not to other religious sector.

03. Liability of Muslim to maintain their aged parents and relatives

The term “maintenance” under the Muslim Law, is called as ‘nafaqa’ which means “what a person spends over his family”.

Hedaya defines ‘maintenance’ as all those things which are necessary to the support of life such as, food, clothes and lodging.

There are three causes for which it is incumbent on one person to maintain other: – (i) marriage, (ii) relationship and (iii) property. The highest obligation arises on marriage; The second class of obligation arises when certain person has ‘means’ and another is ‘indigent’. It is true that the obligation to maintain one’s children is a personal obligation. The obligation to maintain one’s aged and infirm parents arises only if one is in easy circumstances and the parents are destitute. The obligation to maintain other relations arises only if one is in easy circumstances and the relations are poor, and it extends to only those relations who are within the degree of prohibited relationship and then too, only in proportion to the share one would inherit from them on their death.

04. Liability of Christian and Parsi to maintain their aged parents and relatives

There are no personal laws for Christian and Parsis for providing maintenance to the parents. The parents who wish to claim maintenance form their children have to approach the Court of law under Section 125 of Code of Criminal Procedure, 1973.

05. Analysis of Maintenance and Welfare of Senior Citizens Act, 2007

According to Section 2(b) of the Act 2007, “Maintenance” includes provision for food, clothing, residence and medical attendance and treatment. The term “welfare” has been defined under section 2 (k). According to which, “welfare” means provision for food, health care, recreation centres and other amenities necessary for the senior citizens. “Parent” means father or mother whether biological, adoptive or step father or step mother, as the case may be whether or not the father or the mother is a senior citizen. “Senior citizen” means any person being a citizens of India, who has attained the age of sixty years or above. As per Section 2 (g) of the Act, 2007, “relative” means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death.

06. CONCLUSION

The concept of gift and the concept of maintenance parents vary according to Personal Laws. Thus there is no uniformity in the procedure to be followed in India as far as gifts are concerned. Even compulsory registration is not insisted in some cases. Thus gifting a piece of immovable property ought to have been placed in chaos but for the enactment of Transfer of Property and its incorporation of gifts under its purview. The procedure regarding gifts are but more influenced by precedents than by principle and subordinate legislation.

BIBLIOGRAPHY

1.                  B.B. Mitra  on the Transfer of Property Act by S.K. Ray, published by Kamal Law house, Calcutta, Fifteenth Edition, 1993

2.                  The Transfer of Property Act, 1882 (4 of 1882), Edited by Krishnan Arora, Published by Professional Book Publishers, New Delhi, 2005

3.                  The Law of Mortgage in India Vol III,, by Rashbehary Ghose,, Published by Thacker Spink & Co, Calcutta, 1914

4.                  Transfer of Property, Act IV of 1882, by N. Gosvami, Published by J.N. Banerjee & Son, Calcutta, 1882

5.                  https://indiankanoon.org

6.                  http://judis.nic.in/supremecourt/chejudis.asp

7.                  http://judis.nic.in/judis_kerala/content.asp

8.                  https://en.wikipedia.org/wiki/Main_Page

NOTES

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[i] See section 14 (1) and (2) of the The Hindu Succession Act (Act XXX OF 1956)

[ii] Smt.Ajambi (Dead) By Lr. v. Roshanbi And Others on 30 August, 2010

[iii] Sinha, R.K., ‘Muslim Law’, Central Law Agency, Allahabad, 2006, p172

[iv] http://www.lawyersclubindia.com/experts/Hiba-Nama-sale-of-property-418301.asp#.U1ObtlWSzz4, accessed on 14/4/2014

[v] http://archive.org/stream/cihm_12245/cihm_12245_djvu.txt, accessed on 20/4/2014

[vi] http://lawstudentshelpline.com/index.php/muhammadan-law/2-uncategorised/382-q-what-is-hiba-who-can-make-a-hiba-what-are-the-essentials-of-a-hiba-is-a-hiba-made-with-intent-to-defraud-creditors-valid, accessed on 14/4/2014

[vii] Sinha, R.K. ‘Muslim Law’, Central Law Agency, Allahabad, 2006, p176

[viii] http://www.legalserviceindia.com/articles/transfer.htm, accessed on 14/4/2014

[ix] http://www.scribd.com/doc/126718471/LAW-OF-GIFT-Muslim-LAw, accessed on 14/4/2014

[x] http://wahabohidlegalaid.blogspot.in/2013/03/hiba-gift.html, accessed on 18/4/2014

[xi] https://makashfa.wordpress.com/tag/history/page/110/, accessed on 14/4/2014

[xii] Art. 59, Indian Limitation Act, 1963

[xiii] Inserted by Act 20 of 1929, sec. 60

[xiv] The words and figures “or, save as provided by section 123, any rule of Hindu or Buddhist law” omitted by Act

20 of 1929, sec. 61