Gifts and Exchanges in Property Law

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GIFTS IN PROPERTY LAW

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Anweshaa Majumdar BA LLB 2ND YEAR 20110089 JGLS -------------------------------------------------

CONTENTS

* Definition of a Gift
* Essential elements of a Gift
* Mode of Transfer of Gifts
* Oral Gifts
* Cases on Oral Gifts
* Gifts under Mohammedan Law
* Important conditions of a valid gift in Hindu Law
* Gift of existing and future property
* Gift to more than one person
* Suspension or Revocation of a Gift
* Different kinds of Gifts
* Universal Donee
* Conclusion

Definition of a Gift
Section 122 of the Transfer of Property Act 1882 defines a gift as:

“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 done, and accepted by or on behalf of the done” In other words, a gift is essentially 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. In gift, an existing property is transferred in favour of another person without consideration. A gift may be made between two living people or it may take place after the death of the transferor (testamentary).

Essential Elements of Gift
The essential elements of a legally valid Gift are:
* There must be a transfer of ownership of property. This means that transference of merely possession doesn’t amount to a gift. In a gift, the whole interest of the interest of the person in a property is transferred in favour of the other person. The donor in question should be competent to contract. i.e. he cannot be a minor or a mentally challenged person. * The property must be in existence. For a gift, it is necessary that the property must be in existence at the time of making the gift, although its conveyance must take place either in present or in future. Both types of properties, moveable and immoveable can be gifted. A gift of a future property is void. * The transfer must be voluntarily made and without consideration. The gift must have been made by the donor voluntarily. i.e. with his free will and consent . In situations where the donor has been forced or coerced into entering into a gift deed, then the gift in question is not valid. * The property must be accepted by or on behalf of the person to whom it is transferred. Acceptance of the gift is important, just like how one has to accept a contract. Sometimes a donee wouldn’t want to accept an onerous gift (a gift which transfers burdens and obligations to the donee, like tax or mortgage). * The transfer must be effected in the manner prescribed by law. This element is described in the coming section of this paper.

Mode of Transfer of Gifts
Section 123 describes the last element which constitutes a gift. This section in the Transfer of Property Act 1882 states that: “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 by a registered instrument signed aforesaid or by such delivery. Such delivery may be made in the same way as goods sold may be delivered.”

Oral Gifts
In view of sec. 123 of Transfer of Property Act, 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...
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