A gift is a gratuitous transfer of a property of any nature to the other person. It is a voluntary transfer from one person to the other. Generally, a transfer without consideration is void. But a gift is an exception to the rule that without consideration an agreement of transfer is void. A gift is given under natural love and affection. This is the reason that even law has put it in a different table.
1. Essentials of Gift
2. How to Transfer a Gift
3. Gift of Existing Property
4. When Gift May Be Revoked
Essentials of Gift
Section 122 of the Transfer of Property Act defines gift as:
1. Transfer of a property from one person to the other. The property may be either movable or immovable.
2. The two parties that are involved in the transfer of a gift are: The donor who gives the gift. And the donee who receives the gift.
3. The property to be transferred in a gift should be an existing one. A future property cannot be gifted.
4. The nature of a gift must be voluntary and not be given under force or undue influence.
5. There is an absence of consideration in money or kind.
6. The acceptance at the side of the donee is necessary for the valid transfer of the gift. The donee must make acceptance in the lifetime of the donor.
7. Both the parties that are the donor and donee must be living at the time of transfer.
8. If the donee does not accept it, and the donee dies before acceptance, then the gift is void.
9. It is the transfer of absolute interest. While transferring interest in the gift, there cannot be any exceptions or restrictions attached to it.
10. The consent of the donor while making the gift must be free from any influence or fraud.
How to Transfer a Gift
If the gift to be made is of an immovable property, then it can be made only through a registered document which shall contain the signature of the donor along with the attestation of two witnesses.
If the gift to be made is of a movable property, then it may be transferred through a registered document or by delivery. It isn’t compulsory for the parties to go through registered deed only.
And when the immovable property is gifted to God or religious trust, it also does not require registration. The giving of gifts to God may be effected orally as well.
Gift of Existing Property
The gift which a donor intends to give to the donee in love and affection can only be of the existing property. A future property can’t be a subject matter of gift. If the donor gifts a future property to the donee, then such transaction shall be void. The day on which the transaction is made, the property must be in existence.
When Gift May Be Revoked
Generally, a gift is not revoked. Once the title or ownership has been transferred, it can’t be taken back. But there are few situations when a gift may be revoked:
1. The donor and donee may mutually agree on the point that if a specified event happens then, the gift may be revoked. But that event must not depend upon the will of the donor.
For example, A gives B a piece of land as a gift. While transferring the ownership, A reserved his right to take back the land if B and his legal heirs will die before A. Here, A can take back the land because it doesn’t depend upon the will of the donor, that is, A.
2. A gift may also be revoked if it generates any reason that if it were a contract, it would have been rescinded by the party. Any such reason cannot be the consideration because, with consideration, the gift shall not be in the nature of a gift.
It could be any other reason like undue influence by other person on the donor to make a gift or maybe coercion and so on.
If the donor in a single transaction transfers several things to the donee, in which one out of those things is burdened with obligation and the others not. Then in such a situation donee, can either accept the whole gift or deny to accept it. The donee doesn’t have the right to elect or choose the property, which is burden-free. He has to accept the whole gift. This is called Onerous Gifts.
But if the donor, through different transactions, transfers several properties to the donee in which one property is burdened with obligation, then in such case donee has the right to choose the burden-free property and reject the property burdened with obligations.