However, according to S. 129, the provisions from S. 122 to S. 129 regarding gifts apply to all types of gifts but do not apply to gifts of movable property made in contemplation of death or rules of gift under Mohammedan Law.

II. Essential Elements of Gift:-

For the above definition, the following can be laid down as essential elements of a gift, viz-

1) Transfer of ownership:-

The gift is one of the ways to transfer property absolutely. The absolute interest of the transferor, i.e. donor, in property divests from him, and it vests in the transferee (donee). Thus, whole ownership is transferred by way of gift. There may be a conditional gift.

2) Existing property:-

The subject matter of the gift must be certain existing movable, immovable, tangible or intangible property. It may either be land, buildings, goods, or actionable claims. It must, in all cases be property in existence at the time of its transfer. In other words, future property or mere spec successionis (i.e. mere chance of succession) cannot be gifted.

A gift comprising both existing and future property is void as to the latter (S. 124):-

As per section 124, a gift comprising both existing as well as future properties is void as to future property and valid as to existing property. Thus, if A gifts some shares in the company that are in his name and also some shares which he is going to purchase immediately, the gift is valid as to existing shares but void as to future shares even though he is immediately going to acquire them.

3) Without consideration:-

An absolute transfer without consideration is an essential feature of a gift. The existence of consideration makes the transaction a ‘sale’ or exchange if the part is paid in money and in kind.

4) Made Voluntarily:-

The donor must make a gift of the property voluntarily. In other words, the donor’s consent must be free, i.e., it must not be affected by coercion, undue influence, fraud, misrepresentation, or mistake.

In cases of a donor like Purdanashin Leady or extremely age-old people, the burden of proving voluntary gifts lies with the donee.

5) Acceptance of a Gift:-

The gift must be accepted by the donee. If the donee is minor or of unsound mind, it may be accepted on his behalf by his guardian.

A gift to several donees, of whom one does not accept (S. 125):-

A gift of a thing to two or more donees, of whom one does not accept it, the gift is void as to the interest which he would have taken had he accepted it. In other words, when the gift is made to two or more persons jointly, they all must accept it. If any donee does not accept it, the gift to his share becomes void. If any of the donees is not competent to give acceptance, the acceptance shall come from his guardian.

Acceptance of ‘onerous gift[2]’ (S. 127):-

‘Onerous Gift’ means the gift of property which is burdened with liabilities. The section provides that when a gift is in the form of a single transfer to the same person of several things of which one is, and the other is not, burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully. In other words, where a single gift consists of several properties, some of which are onerous and the others are beneficial, the donee must accept the whole gift; he cannot be allowed to accept the beneficial part of the gift and reject the onerous one. The principle is based on the Latin maxim, ‘quisensit commondum debet et sentire onus’ which means “one who accepts the benefit of a transition must also accept the burden of it”. Thus, if A gifts by one transaction three landed properties to B, one of whom is burdened with the heavy loan, B must either accept all three properties or reject the gift in total. Still, he cannot accept two beneficial properties and reject the onerous one.

However, where a gift is in the form of two or more separate and independent transfers to the same person of several things, including onerous property, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous. Thus, if A gifts by three different transactions, three different properties, one of which is onerous, the donee may accept the beneficial denying gift of onerous property.

An onerous gift to a Disqualified person:-

A donee not competent to contract and accept property burdened by any obligation is not bound by his acceptance. But if he becomes so bound after becoming competent to contract and being aware of the obligation, he retains the property given.

In other words, this clause of S. 127 incorporates the principle of election. The minor or lunatic, after becoming major or of sound mind, can reject acceptance given on their behalf by his guardian. He has the right of election either to reject the gift or accept it by retaining the property. But if he retains the property given as a gift to him, he becomes bound to the ones attached to the property.

Illustrations

(a) A has shares in X, a prosperous joint stock company, and also shares in Y, a joint stock company in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the share in X.

(b) A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term and which is more than the house can be let for, gives to B the lease and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not, by this refusal, forfeit the money.

Universal Donee (S. 128):-

A universal donee is a person who gets the whole property of the donor in a gift. In other words, no property remains with donee when he makes a universal gift. The universal donee is liable personally for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. However, this rule is subject to the provisions of S. 127.

In other words, where a gift consists of the donor’s whole property, the donee is liable for all the debts and liabilities of the donor due at the time of the gift. Such liability of donee is limited to the extent of the property comprised in a gift. Thus, if A is a universal donee of B, and the value of the property is 1 lac rupees, A is liable to the extent of Rs. 1 lac and not up to Rs. 2 lac.

III. Transfer of gift how effected (S. 123):-

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.

For the purpose of making a gift of immovable 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.

IV. When gift may be suspended or revoked (S. 126):-

The donors may make a gift subject to a condition of its being suspended or revoked. The section provides valid modes of suspension or revocation of the gift as follows-

1) Revocation by agreement:-

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.

Thus, we may say that even though a gift can be revoked by the parties’ agreement at the time of the gift itself, the condition upon which a gift is to be revoked must not depend solely on the donor’s will. A gift revocable at the will of the donor is no gift at all.

Illustration

(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. 90000 but is void as to Rs. 10,000, which continues to belong to A.

2) Revocation by rescission:-

A gift may also be revoked in any of the cases in which, if it were a contract, it might be rescinded (set aside). In other words, a gift is revoked on any of the grounds on which it might be rescinded had it been a contract.

Thus, if the donor’s consent is caused by coercion, undue influence, fraud or misrepresentation, the donor has the option to repudiate or revoke the gift, as under S. 19 of the Indian Contract Act.

No gift can be revoked except on the above-mentioned grounds. In other words, no new ground except the above-mentioned gift can be revoked.

Bona fide purchaser is protected:-

The latter part of S. 126 provides that nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. Thus, the person who purchases the property from donee for consideration without notice of his defective title is valid.

*****

[1] दान [“उपहार” एक हस्तांतरण है-(i) कुछ मौजूदा चल या अचल संपत्ति की,(ii) स्वेच्छा से किया हुआ, और(iii) बिना प्रतिफल के,(iv) एक व्यक्ति द्वारा, जिसे ‘दाता’ कहा जाता है, दूसरे को, जिसे “प्राप्तकर्ता” कहा जाता है, और(v) प्राप्तकर्ता द्वारा या उसकी ओर से स्वीकार किया जाता है]

[2] बोजासह मिळकत, [उपहार की भार के साथ स्वीकृति]