INTRODUCTION: WHAT IS A GIFT..?
Section 122 of The Transfer of Property Act, 1882
- “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.
The one who gives the gift is called donor, and the one who accepts it is called donee. when one hand overs the proprietorship of his property to another person without any consideration in terms of money, goods. etc. is gift. lt is also known as complimentary transfer which does not expect anything in return.
ESSENTIALS OF A GIFT
- The property’s ownership must be transferred to the donee by the
- It must be movable or immovable and m net be transferable to the
- You cannot gift something you don’t have in possession you cannot gift the property which you might own in
- No money can be taken for transferring the property otherwise it will be seen as sale not a
- The gift should be given of their free will only, the one can only give the gift with their free consent, it is not gift if someone forces them to give the consent.
- The donor should be a adult and of legal age to transfer the property as a gift, before attaining the legal age the donor cannot gift the property to
- The donee must accept the gift given to him by the donor whilst the donor is alive or is capable enough to provide the gift, even if the donee is minor then also he can accept the gift or someone vested with the power to do so can do it for him such as his parents
SUSPENSION OR REVOCATION OF GIFTS
According to Section 126 of Transfer of Property Act, a gift can be suspended or can be revoked if both the parties (donor and donee) agrees to it.
It can be done by take mutual consent of both the parties of by creating conditions like of a contract upon violation of which the gift shall be revoked, the donor alone does not hold the right to revoke the gift at any moment but if both the parties agrees then only it can be revoked. They can also make the revocation possible for partly gift only not the whole gift.
For example– person A (donor) gives a piece of land as a gift to B (donee) then the land will belong to B only, unless they mutually sign an agreement to get the gift revoked. They can make some conditions upon breaking of which the gift will be revoked. It can be for partial gift and not whole gift like A gives a condition that B can only use his property but cannot sell or transfer it to anyone else so if B breaks this condition then the gift shall be revoked to A only.
REVOCATION DONE BY MUTUAL AGREEMENT:
Both the parties must decide and agree upon the revocation or suspension o£ the gift at the time of the event which is not controlled by the donor’s will as if the revocation or suspension is in the hands of donor then it cannot be treated as gift, what meaning will left to the gift without any consideration by donor if he decides when to revoke or suspend the gift according to his own choice.
The conditions of the revocation of the gift must be presented at the time of giving gift itself, it may not be in same document as of the gift but should be presented at the same time. The condition specified should not be according to donor’s choice in which he can control the conditions according to him. It should be mutually decided between both the parties so that the gift can be treated as gift only because if the conditions are according to donor only then it is not a gift, but if it is mutually
If there is no agreement made at the time of giving the gift and is made after giving the gift then the gift can not be suspended or revoked, it will become absolute.
For example– ‘D” gave his property to ‘F’ as a gift and after that point of transfer only they came upon a mutual agreement that ‘F’ or his heirs will not use the property for commercial purposes but ‘F’ had a son who rented out the whole property which resulted in the violation of agreement but the agreement was not made before or at the time of giving the gift which results in no revocation.
REVOCATION BY RESCISSION AS CONTRACTS
Gift is transfer which is done by free will and consent to the other as a good will not under some pressure. If someone proves that the gift they gave was not due to free will and consent but was due to some influence or pressure on them which forced them to give the gift then the gift can be revoked. As the donor should transfer the gift of his own will not due to some force. If the donor proves that the force was used to take gift from him then the gift can revoked by the donor.
According to Section 19(1) of Indian Contract Act ”Where consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained” the gift which is made under the above conditions can be suspended by the donor himself.
But it does not make the gift completely void the donor still needs to revoke or suspend the gift, or he can choose not to revoke the gift the donor cannot assign this role to anyone else if he wishes then he must exercise the option himself. After the death of the donor his heir can exercise this right also.The time limited to claim this is up to 3 years after he himself gets to know about such facts.
NO REVOCATION ON ANY OTHER GROUND
Except the revocation done by mutual agreement or the revocation done by rescission as contract the Gift transferred cannot be revoked under any circumstances.
Author: Shivam Sharma,
Delhi Metropolitan Education , GGSIPU . 3rd year