Meaning of gift

Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor to another, called Donee and accepted by or on behalf of Donee. 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.

Essential elements of a gift

The following are the essential elements of a gift:

Voluntary and without consideration

The transfer of movable or immovable property should be voluntary and without consideration. The gift of property by undue influence makes the gift voidable and a suit to set it aside can be brought within three years prescribed by the Limitation Act.

Donor

The person transferring the property is called the donor and every one who is sui juris can dispose by way of gift of any property or of any estate or interest in it to which he is absolutely entitled.

Donee

The person accepting the gift is the Donee. All persons whether sui juris or not are competent to receive gifts. A minor can accept the gift, other than where gift is onerous.

Subject matter of gift

All property, real and personal, corporeal and incorporeal may be the subject of gift. A future property or mere expectancy, such as an expectation of succession to property, as the possible heir or one of the possible next of kin of a living person cannot be transferred by gift.

Transfer

The donor should transfer the property voluntarily and without consideration.

Acceptance

The acceptance of gift should be made by the Donee. The acceptance may be express or may be inferred by the donee's possession of the property or even the donee's possession of the deed of gift within the meaning of section 123, Transfer of Property Act, and therefore the gift became effectual, subject to registration and it is immaterial that the deed was not stamped. The guardian of a minor can accept the gift for him, although he cannot incur an obligation. The acceptance of gift must be in the lifetime of the donor and if the donor dies before acceptance, there cannot be a gift. However, if the donor dies after acceptance of the gift, but before the deed is registered, the transfer may be completed by registration after the death of the donor. In case of registered gift deed, where execution is not denied by executor, proviso to section 68, Evidence Act is attracted and formal proof of gift deed is not necessary.

Transfer, how effected

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 movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Gift of existing and future property

A gift comprising both of existing and future property is void as to the latter.

Gift to several of whom one does not accept

A gift of a thing to two or more donees, of which one does not accept it, is void as to the interest, which he would have taken had he accepted.

Gifts under Mohammedan law

According to Baillie, gift is defined as transfer which confers the right of property, in something specific, without an exchange. Under Muslim Law, for validity of deed of gift four elements are necessary:

• Declaration of gift by donor.
• Relinquishment by donor of ownership and dominion.
• Acceptance of gift by Donee.
• Delivery of possession of the property by donor.
• Relinquishment of control and ownership by the donor is necessary to complete the gift.

The acceptance of the gift should be made by the Donee. The acceptance signifies the intention of the Donee to take the property. The gift is not complete without acceptance. The acceptance of the gift in favour of an institution or any other juristic person can be made by its manager or any other competent person. The gift to minor or to insane person can be accepted by their guardians’ viz. (a) Father, (b) father, (b) father's executor, (c) paternal grandfather, (d) Paternal grandfather's executor. These guardians are in the order of priority.

The delivery of possession of the transferred property is an essential condition for a valid gift. The donor should put the Donee into possession of the property gifted. The gift ends in giving physical possession of the property to the Donee. The Donee is said to be in possession of the property when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering or as is usually derived by it. The delivery of possession may be either actual or constructive. The actual possession of tangible or corporate properties should be given by actual delivery. When the property gifted is movable, it must be actually transferred and handed over to the Donee, a mere entry in a register or account book is not sufficient. When the property gifted is immovable, the donor should hand over the possession of the same to the Donee. If the donor makes a gift of a house in which he is residing, he must vacate it and ask the Donee to live in it. Under Mohammedan Law, delivery of physical possession is essential and the mutation of names does not constitute delivery of possession where the mutation proceedings started, but the physical possession could not be given and the donor dies, the gift will not be complete for want of delivery of possession

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