| Introduction | jurisprudence |
| sections | section 122-126 TPA |
| Relevant Case laws | Tila Bewa vs Mana Bewa Kartari vs Kewal Krishan |
| present problem | question related |
| conclusion | decision as per our reasoning |
A Gift is generally regarded as a transfer of ownership of a property where the sender willingly brings into effect such transfer without any compensation or consideration in monetary value. It may be in the form of moveable or immoveable property and the parties may be two living persons or the transfer may take place only after the death of the transferor. When the transfer takes place between two living people it is called inter vivos, and when it takes place after the death of the transferor it is known as testamentary. Testamentary transfers do not fall under the scope of Section 5 of the Transfer of Property Act, and thus, only inter vivos transfers are referred to as gifts under this Act.
Parties to a gift transfer
Donor
The donor must be a competent person, i.e., he must have the capacity as well as the right to make the gift. If the donor has the capacity to contract then he is deemed to have the capacity to make the gift.
Donee
Donee does not need to be competent to contract. He may be any person in existence at the date of making the gift. A gift made to an insane person, or a minor, or even to a child existing in the mother’s womb is valid subject to its lawful acceptance by a competent person on his/her behalf.
Section 122 TPA:
“Gift” defined.—
“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.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.
Section 123. Transfer how effected:
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.
Section 124. Gift of existing and future property.—A gift comprising both existing and future property is void as to the latter.
Section 125. Gift to several of whom one does not accept.—A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.
Section 126.When gift may be suspended or revoked.—
The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.Save 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.
Illustrations: (a)A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.(b)A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.
It must consist of the following essentials:
- The condition must be expressly laid down
- The condition must be a part of the same transaction, it may be laid down either in the gift-deed itself or in a separate document being a part of the same transaction.
- The condition upon which a gift is to be revoked must not depend solely on the will of the donor.
- Such condition must be valid under the provisions of law given for conditional transfers.
- The condition must be mutually agreed upon by the donor and the donee.
- Gift revocable at the will of the donor is void even if such condition is mutually agreed upon.
Essential elements
There are the following five essentials of a valid gift:
- Transfer of ownership
- Existing property
- Transfer without consideration
- Voluntary transfer with free consent
- Acceptance of the gift
Transfer of ownership
The transferor, i.e., the donor must divest himself of absolute interest in the property and vest it in the transferee, i.e., the donee. Transfer of absolute interests implies the transfer of all the rights and liabilities in respect of the property.
Existing property
The property, must be in existence. The gift of future property is not valid.
Transfer without consideration
A gift must be gratuitous, i.e., the ownership in the property must be transferred without any consideration.The consideration is pecuniary in nature, i.e., in monetary terms. Mutual love and affection is not pecuniary consideration and thus, property transferred in consideration of love and affection is a transfer without consideration and hence a gift.
Voluntary transfer with free consent
The donor must make the gift voluntarily, i.e., in the exercise of his own free will and his consent as is a free consent. Free consent is when the donor has the complete freedom to make the gift without any force, fraud coercion, and undue influence.
Acceptance of gift
The donee must accept the gift. Property cannot be given to a person, even in gift, against his/her consent. The donee may refuse the gift as in cases of non-beneficial property or onerous gift. Onerous gifts are such where the burden or liability exceeds the actual market value of the subject matter. Thus, acceptance of the gift is necessary. Such acceptance may be either express or implied.
Relevant Case laws:
Tila Bewa vs Mala Bewa
facts:
Mother in law, defedant, was the owner of certain properties. She executed a gift deed in favour of daughterin law, plaintiff, in the hope that pliamtiff would marry her son, live with them, and look after both of them in their old age. Thereafter plaintiff married her son and came to live with them. Subsequently the son died, and after a while plaintiff felt neglected and went back to her natal place. Plaintiff applied for mutation of names, but defendant executed a deed of cancellation on the ground that as the gift was not acted upon the same could be cancelled. She pleaded that it was a conditional gift and was subject to a condition that plaintiff would live with her and look after her. Since plaintiff had gone back to her father’s place, the condition was not fulfilled and she was empowered to revoke the same.
issue:
Whether the gift is a conditional or not?
Whether revocation is possible?
judgment:
The court held that if the deed is a conditional gift, the fact that it is conditional must be apparent from the language of the document.The document should also provide that in case the condition that the gift is subject to is not fulfilled, the gift would be revoked. It is only in such a situation that the gift can be revoked. Thus, unless the gift deed contains a clause for its revocation, it cannot be revoked.Under section 122 the Transfer of Property Act, a gift is complete when it is accepted by or on behalf of the donee; where there is evidence that the gift of property by a person to his wife and children was accepted by the donees, the fact, – that the donor, who had no other property, – stayed on the property, even after the gift, – does not show that the gift had not taken effect.If the terms of the gift deed were that there had been as absolute transfer of the property in favour of the donee, such a direction for maintenance shall be regarded only as an expression of pious wish on the part of the donor.The gift deed, the court held did not contain any revocation clause. What was contained in the gift was the wish of a mother that the daughter-in-law would live with her and look after her. But it did not provide as to what would happen if she did not comply with her wishes.The gift therefore was held as an absolute gift, and once it was executed, it could not be revoked.
Court held that in the absence of condition whose failure would revoke the gift cannot be revoked. It has no agreement that on failure of plaintiff to perform any condition the gift will be invalid. Therefore, the deed is valid. Hence, the plaintiff is entitled to immediate possession of the disputed property.
Kartari vs Kewal Krishan
facts:
The property was owned by a 70 year old widow, W who was ailing. She had a daughter to whom she was very attached. This daughter was looking after her mother as well as managing her properties. When the daughter was away, the distant male collaterals of W approached her and on the pretext of showing her to a doctor, took the old lady to a place away from her place of residence and got her signature on the gift deed already prepared by them. The deed was attested and registered the same day and the lady was brought back to her house after that. On returning the daughter heard from people about the gift deed and when she inquired from her mother, all that the lady could tell was that she was taken to some place and was made to sign some papers.The daughter and the mother then went to the place where the deed was registered and lodged a complaint at the police station to the effect that the deed was obtained by the collaterals by fraud and undue influence. The lady died shortly thereafter and the collaterals took possession of the property. The daughter filed a suit on the ground that the gift deed was obtained by the collaterals through fraud, and undue influence and was therefore void.
Issues:
Are the relation between the parties such that the donee is in position to dominate the Will of donor?Has unfair advantage has been taken?
judgement:
The court explained the meaning of undue influence and observed, that the beneficiaries here had taken a leading part in the execution of the gift deed, and this by itself is sufficient to prove that they dominated the will of the donor and exercised undue influence in obtaining an unfair advantage in as much as they deprived the natural heir, namely the daughter, of the entire properties.
The court also observed that the beneficiaries under the deed failed in proving that, the lady understood what was written in the deed, or that it was read over and explained to her.
This was mandatory to prove as the language of the deed was one that she was not familiar with. The physical act of signing the deed did not coincide with the mental act of an intention to sign it.
The court held that the gift deed was not valid as it was not executed with the free consent of the donor. Her consent was tainted with undue influence and fraud.
Court held that from above evidence, inference can be drawn that defendant were in position to dominate the will of the lady and that they exercised their influence and obtained an unfair advantage for themselves. Plaintiff is entitled to get possession of the property. Hence, the appeal is dismissed.
