A gift is typically defined as an ownership transfer of property that is carried out voluntarily by the giver without any payment or other incentive. The property may be immovable or movable, the parties may be two living people, and the transfer may only take place following the death of the transferor. Inter vivos refers to a transfer that occurs between two living individuals, and testamentary refers to a transfer that occurs after the transferor’s death.
gift under transfer of property act definition
- The transfer of some existing moveable and immovable property, made freely and without consideration by one person, known as the “donor,” to another, known as the “donee,” and accepted by or on behalf of the donee, is known as a gift under transfer of property act.
- The individual transferring the property is referred to as the “donor,” and the recipient of the transfer is referred to as the “donee.”
section 122 of transfer of property act
- A gift is defined as a voluntary, non-required transfer of property from one person (the donor) to another (the donee), who accepts the gift, under section 122 of transfer of property act.
- This section lists the requirements that must be fulfilled in order for a gift to be considered legitimate, such as the donee’s acceptance of the gift and the donor’s capacity to make the gift.
- With a few exceptions, such as when the donee passes away before accepting the gift or when the gift is not registered, once it is made, it cannot be undone.
- The clause also mentions that presents may be given orally, which needs to be done in front of witnesses, or through a documented gift deed.
- The part also highlights the fact that stamp duty and registration costs must be paid when giving gifts of real estate.
Valid Gift: Important Essentials
Transfer of Ownership:
- The property must be given to the transferee, also known as the donee, once the transferor, also known as the donor, gives up all right to it. The transfer of all rights and obligations with regard to the property is implied by the transfer of absolute interests.
- It is permissible to transfer ownership through gifting.
Existing Property:
- Section 124 of this Act stipulates that the bequeathed property must exist at the time of gifting, even whether it may be conveyed now or in the future.
- It is possible to gift both moveable and immovable property.
Transfer without Consideration:
- A gift needs to be gratuitous in order to qualify.
- Transferring ownership must happen without any compensation.
- The Indian Contract Act, 1872 (ICA) defines “consideration” in Section 2(d), and the Transfer of Property Act, 1882 uses the same definition of the word.
- According to Section 2(d) of the ICA, an act, abstinence, or promise made by the promisee or by any other person at the request of the promisor, which includes doing or not doing something, or promising to do or not do something, is considered a consideration for the promise.
Voluntary Transfer with Free Consent:
- The gift must be given willingly, meaning that the giver must act in accordance with his free choice and agreement.
- When a donor gives their full consent without being coerced or subjected to undue influence or fraud, they are said to be giving their consent freely.
- The donor’s will must be free and independent in carrying out the gift’s deed.
Acceptance of the Gift:
- The donee must accept the gift, and acceptance might be given explicitly or subtly.
- A capable individual must receive the gift on the donee’s behalf if he is a minor or mentally incompetent.
landmark cases on gift under transfer of property act
- In the Padma Chand v Lakshmi Devi case, according to the ruling of the court, a gift is an unpaid, voluntary transfer of property made by the property owner without expectation of financial gain.
- In the Vimala v Narayanaswamy case, according to the court, a gift deed, not a will, will be used when the property is to be transferred during the executor’s lifetime and the deed is to be placed into effect immediately.
- In the Gomtibai v Mattulal case, the Supreme Court ruled that a gift of real estate is deemed incomplete if it is not accompanied by a written document signed by the donor, two witnesses attesting to it, registering it, and the donee accepting it.
Any transfer of property, whether it be immovable or movable, is called a gift. A donation must meet all requirements and adhere to rules and regulations in order to be considered valid. Revocation of a gift may occur for a variety of reasons, including the donee’s passing, illegal subject content, misrepresentation of the subject matter, or a loss of the donor’s will and acceptance. The legal requirements for giving and receiving gifts must be followed if all guidelines about their contents and suspension are followed.
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