Definition of “gift” is given in section 122 of the Transfer of Property Act, 1882.A gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called donor, to another called the donee, and accepted by or on behalf of the donee. Such acceptance maybe made during the life time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Onerous gifts:-when a gift is in the form of a single transfer to the same person of several things of which one is, and 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.
A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance during such incompetence. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound (section 127, TPA).
Subject to the provisions of this section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein [section 128, TPA].
A gift once made is irrevocable except in the following two cases:
First– When the donor and the donee have agreed that on the happening ofa specified event, not depending upon the Will of the donor, the gift shall be or revoked.
Second– in any of the case (save want or failure of consideration) in which, if it were a contract, it might be rescinded on grounds of fraud, coercion, undue influence, misrepresentation etc. [section 126, TPA).
Points/Essentials while drafting a gift deed
For the purpose of making a gift of immovable 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. A gift of movable property, however, may be effected either by a registered instrument or by delivery of possession. Thus, before drafting a gift deed, the following essentials must be kept in mind:-
1. In a gift, the donor must intend to pass on the ownership of the property to the donee. The property must be in existence at the time donation. Gift of future property is void.
2. The transfer must be without consideration. However, past services ormutual love and affection can be a consideration in a gift. Gift of movableswhich has been completed by delivery and gift of immovable propertywhich is attested and registered cannot be questioned as to their validityonly on the ground of lack of consideration or no consideration thereof.
3. The transferor must be competent to contract and his gift to the donee should be voluntary i.e., with his free consent.
4. Gift depending on a condition fulfillment of which is impossible or whichis forbidden by law is void.
5. Gift must be accepted by the donee. Acceptance may be implied from the conduct of the donee by taking possession or doing some overt act in relation to the property donated to him. The acceptance must be at a time when the donor is alive and capable of giving.
6. A gift which is revocable under an agreement at the mere will of the donor is void. The circumstances under which a gift can be revoked are given under section 126 of the Transfer of Property Act, 1882. 7. The above provisions do not apply to gifts of movable property made in contemplation of death and do not affect any rule of Mohammedan law.