COMPARITIVE STUDY OF GIFT AS UNDER THE TRANSFER OF PROPERTY ACT AND MOHEMMEDAN LAW - INTRODUCTION
By K. Kruthika Rao, N.L.U., Jodhpur
"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. 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 conception of the term "gift" as used In the Transfer of Property Act is somewhat different from the use in Mohammedan law.
In the Mohammedan law a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes-
a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and
b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property or right.
Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.
The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions which are covered by the general term "gift”. A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law. A gift is not a contract (though in Muslim law it is called a contract) but the principle may be applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.
The concept of gift is diametrically opposed to any presence of consideration or compensation.
In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be established by different circumstances such as donee taking a property or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given raises a presumption of acceptance.
CONCEPTION OF PROPERTY
English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is necessary to first note the different conceptions of property in English and Mohammedan laws. The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. Rights in land described as "estate in land" do not always imply only absolute ownership but also rights which fall short of it and are limited to the life of the grantee or otherwise limited in respect of time and duration or use property in all these various forms are described as "estate". Ownership of land is thus split up into estates distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration (e.g., estates in fee simple, in tail, for life or in remainder.'
Mohammedan Law.-In general, Muslim law draws no distinction between real and personal property, and there is no authoritative work on Muslim law, which affirms that Muslim law recognises the splitting up of ownership of land into estates. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time is said to be the "owner" of the property during those periods. The usufruct is also a part of the corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an "owner" during that period. The English law thus recognises ownership of the land limited in duration while Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of the contract.
On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of minor for the purpose of such property.
In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and not by Mohammedan law.
The age of majority as regards matters other than marriage, dower, divorce and adoption, is now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person shall be deemed to have attained majority when he shall have completed the age of eighteen years. In the case, however if a minor of whose person or property a guardian has been appointed, or of whose property the superintendence has been assumed by a Court of Wards, the Act provides that the age of majority shall be deemed to have been attained on the minor completing the age of twenty-one years.
Soundness of mind and majority are the only qualifications required for making a gift. A gift to be valid must be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction.
Donor’s powers are unrestricted in Mohammedan law-
A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a stranger wholly excluding the heirs. Pardanashin Lady Free consent means, the consent should not have been obtained by fraud, misrepresentation or undue influence. An insolvent donor is not competent to make a gift.
The donee is the person who accepts the gift, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift.
The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A gift can be made to a child en ventre sa mere and could be accepted on its behalf.
The donee must be an ascertainable person and be a donee under this section; nor can a gift be made to an unregistered society.
A gift to two or more persons may be a gift to them as joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a Hindu gift the donees are presumed to take as tenants in common
It is necessary in Mohammedan law that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid.
Gifts of Usufruct(Ariat) to unborn persons -a hiba stands on a different footing from a gift of a limited interest in usufruct a gift of future usufruct to unborn persons is valid provided that the donee is in being at the time when interest opens out for heirs
Child in the womb - a hiba in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.
Juristic persons - a gift to juristic persons or any other institution is valid. So a gift to corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line governed by Marumakkathayam law) are valid. Such a gift will be valid as being one for the whole body.
It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person, and that a valid gift can be made in favour of a mosque.
Gifts to Non-Muslims - a gift may be made to a non-Muslim but in such a case the property will, after the completion of the gift, be subject to the personal law of the donee and not that of donor.
SUBJECT OF GIFT
The subject matter of the gift must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property. A gift of a right of management is valid; but a gift of future revenue of a village is invalid. These cases were decided under Hindu and Mohammedan law respectively but they illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does not involve a transfer of property but is merely a renunciation of a right of action. It is quite clear that an actionable claim such as a policy of insurance may be the subject of a gift
It is submitted that in a deed of gift the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context properly construed in the light of all the relevant facts.
Therefore in order to constitute a valid gift, there must be an existing property.
In Mohammedan law any property or right which has some legal value may be the subject of a gift.
CONDITIONS FOR VALID GIFT UNDER SECTION 122 OF THE TRANSFER OF PROPERTY
There was a divergence of view between the two schools of Hindu law as to the necessity of acceptance of the gift by the donee, Dayabhaga holding that it was not necessary but Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the property in him subject to his right to repudiate the gift, even though he be unaware of the transfer And this is so even though the gift be onerous. The mutation entries of the property alleged to be gifted does not conveyor extinguish any title and those entries are relevant only for the purpose of collection of land revenue.
Gift defined under the Transfer of Property Act is as given below-
122. "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.
It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those gifts that are gifts inter vivos or an absolute gift. Property under the above section can be both moveable or immoveable but however have to be tangible in nature. In order to constitute a valid gift, there must be an existing property as already earlier elaborated.
Voluntarily - In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the exercise of the unfettered free will, and not its technical meaning of 'without consideration'. When a gift is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon clear intention to make an out-and-out gift, but the intention has failed for want of transfer or any other cause, the courts will not convert what was meant to be an out-and-out gift into a trust, and the donor will not be deemed a trustee of the property for the intended donee. The gift will fail. Also where the husband deposited certain ornaments with a bank for safe custody in the joint names of himself and his wife, with direction to be delivered to be either or survivor, it did not amount to a gift, as the husband retained dominion over the property. Where a person keeps money to fixed deposit in the name of his niece, brought up and given in marriage by him, there is an inference of gift in favour of the niece.
Where the motive behind the deed of gift was unequivocal to give the transferee a title which would act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be called a sale. Similarly where a person settles an annuity upon his alleged wife, the settlement cannot be construed to be a contract for consideration of love and affection, but is a gift pure and simple.
Donative intention (motive) and consideration-
A gift is a transfer. But it does not contain any element of consideration. Complete absence of monetary consideration is the main, hallmark, which distinguishes a gift from a grant or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these financial considerations cannot be called or held to be legal considerations as understood by law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love and affection is a sufficient consideration when a gift is contemplated, but it is not considered as a 'valuable' consideration when such is required.
It is one of the essential requirements of a gift that it should be made by the donor ‘without consideration’. The word 'consideration' has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a gift inter vivos must be without 'consideration' of the nature defined in sec. 2(d) of the Contract Act.
Where a very old man, with weak eyesight, sues for cancellation of the deed of gift executed by him in favour of his son alleging that it was not his voluntarily act. The circumstance also indicated that the donee was in a position to dominate the will of the donor. Under such circumstance the onus shifts on to the donee to prove that the gift was made voluntarily.
In another case of the Orissa High court, Gift deed is alleged to have been taken from a pardanashin lady by practicising fraud. When the plaintiff is an illiterate or pardanashin lady, in spite of the fact that she is unable to establish her case of practising fraud, the onus still remains uponi the donee to establish conclusively that the document was executed after it was read over and explained to her and after she understood the contents thereof.
‘Without consideration’ - A gift is a transfer without consideration and if there is any consideration in any shape, there is no gift. The word 'consideration' means valuable consideration, i.e. consideration either of money or money's worth. A gift in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a gift.
Where a mother gifts property to her only daughter, who promises to maintain the former throughout her life, the promise is not enforceable in law because the gift has to be for natural love and affection and not for any consideration . A minor may be a donee and the minor's natural guardian can accept the gift on behalf of the minor. But if the gift is onerous, the obligations cannot be enforced against the minor during his minority. But on his attaining majority, the minor must accept the burden or return the gift. The donee can even be a child en ventre sa mere (in its mother's womb).
When Acceptance 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.
Acceptance. - The gift must be accepted by the donee or by someone on his behalf. An offer without acceptance by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the donee knows about the gift, slighest evidence of acceptance being sufficient.
Even when a gift is made by a registered instrument, the same has to be accepted by or on behalf of the donee to make it complete, failing which the gift will be bad, because it so provides in sec. 122. What the law requires is acceptance of the gift after its execution, though the deed may not be registered. Anterior negotiations or talks about the gift would not amount to acceptance. Person accepting gift on behalf of the minors appended his thumb-impression on the deed in token of acceptance. It was held that the gift was complete. Acceptance must be essentially made before the death of the donor. There must be something shown to indicate an acceptance. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Acceptance may be implied, but the rule of implied acceptance ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is shown. Acceptance will be presumed if there is possession, actual or on the parties where some right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the transfer of property Act to show that the acceptance under this section should be express. The acceptance may be inferred, and it may be proved by the donee's possession of the property, or even by the donee's possession of the deed of gift.
Delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift, it is only normal to assume that the donee had accepted the gift, because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance, provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.
While mere possession by or on behalf of, a donee may amount to acceptance, mere possession cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the donor and the donee.
A gift of immovable property can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a gift of immovable property is invalid without a registered instrument.
ESSENTIALS OF GIFT UNDER MOHAMMEDAN LAW
Under Mohammedan law, to be a valid gift, three essentials are required to exist:
(a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential conditions the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.
In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of gift four elements are necessary
Ø declaration of gift by the donor
Ø relinquishment by donor of-ownership-and dominion
Ø acceptance of the gift by donee, and
Ø delivery of possession of the property by donor.
Under the Mohammedan Law it is essential as regards gift that the donor should divest himself completely of all the ownership and dominion over the subject of the gift. It is essential to the validity of the gift that there should be delivery of such possession as the subject of the gift is susceptible of. According to Muslim law it is not necessary that there should be deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered.
Acceptance- Acceptance may be made expressly or impliedly by conduct, but acceptance would be unnecessary in a case where the gift is made by a guardian to his ward. Mohammedan law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a gift in favour of minor.' A minor who has attained discretion may accept the gift even after it has been rejected. He may also refuse to accept the gift.
of possession - Under the Mohammedan law
it is not
necessary that there must be actual delivery of possession to make a gift valid. It is a fundamental rule of Mohammedan law as regards gifts,that "the donor should divest himself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there- should be a delivery of such possession as the subject of the gift is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case. A gift with a reservation of possession by the donor during his life was held to be void in K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan, One thing is clear, that by reserving undisturbed his right to be in possession and enjoyment, the donor does not divest himself completely of all dominion over the properties, though in sense, he purports to associate the donees with himself, nor can such
associating the donees in the matter of possession and enjoyment with him be deemed to be delivery of such possession, if all, as the properties are susceptible of. It is not correct to say that a stipulation that the donor and the donees shall be in joint possession, satisfies the requirement of delivery of possession in a gift under the Mohammedan law.
Even where the donee resides with the donor in the property although no physical departure by the donor or formal entry by the donee, is necessary, the gift has to be completed by the donor indicating a clear intention of his part to transfer possession and to divest himself of all control over the subject of the gift.' Among the conditions required for the validity of a gift under Mohammedan law the most essential is that of delivery of possession, actual or constructive, with the permission of the donor, without which a gift cannot be valid.
Possession, Actual and Constructive - It should, however, is noted that while the delivery of possession is an essential condition for the validity of the gift, it is not necessary that in every case there should be a physical delivery of possession. Possession the delivery of which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift. The relinquishment of control is thus necessary to complete the gift. The real test of the delivery of possession is to see whether the donor or donee reaps the benefit; if the former possession is not transferred and if the latter, it is transferred, and the gift is complete if the donee is permitted directly or indirectly to receive the benefit. Constructive possession of the subject of the gift is therefore sufficient.
Oral Gift of an Immoveable Property-
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 view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any title
Under the Muslim law, an oral gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been effected.
Although the Hindu law requires delivery of possession to complete a gift of immovable property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession
Since delivery of possession is not necessary, it follows that if a Hindu executes a gift in praesenti of three villages by means of a duly registered instrument but reserves possession of the villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he would not alienate the property to anybody else, the gift is perfectly valid.
Under the Mohammedan law, the essentials of a gift are: declaration of gift by the donor, an acceptance of the gift by the donee, and delivery of possession such as is the subject of the gift susceptible of. This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a gift of immovable property.
Possession means not always actual physical possession but possession which the property is capable of being given. So far as declaration is concerned, it must be shown that the donor either in the "presence of witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering possession to the donee. A Mohammedan can make oral gift of his immovable gift subject to these conditions.
Delivery of possession being essential to the validity of a gift, it follows that if there is no delivery of possession, there is no valid gift.
Under the Mohammedan law, a valid gift can be affected by delivery of possession, and if there is delivery of possession, the mere fact that there is also an unregistered deed of gift does not make the gift invalid.
A COMPARITIVE OF GIFT IN THE TRANSFER OF PROPERTY ACT AND IN MOHAMMEDAN LAW
PROPERTY- Gifts as given under the transfer of property Act deals only with gifts of tangible properly; and so a release of a security without consideration does not fall under this section; because, though the release of the security may be said to be a gift, still the gift is not one of tangible property. When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register, though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the gift of such title to get on the register is complete when a deed of gift duly attested and registered, together with the shares and blank transfer form signed by the donor, is handed over to the donee.
HIBA OF CORPOREAL AND INCORPOREAL PROPERTY-it is not necessary that a hiba must be of some corporeal or tangible property, it may be made not only of corporeal property but also of incorporeal property. Thus, a hiba may be made of actionable claims or chooses-in-action, e.g. debts,negotiable instruments or Government promissory notes.
of a debt -the gift of a debt to the
debtor is lawful both
by analogy (qiyas) and liberal interpretation (istehsan). A gift takes effect in two ways, by transfer of right of property (tamlik) or by cancellation or discharge (iskat). The gift of a debt to the debtor comes under the latter category. If the creditor releases the principal debtor from debt, both the debtor and surety are released. The release of a debt may also be made in favour of the heirs of the debtor if he dies.
EXISTENCE OF PROPERTY NECESSARY- In order to constitute a valid gift, there must be an existing property. In other words, the subject-matter of the gift must be certain existing moveable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of gift of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of gift in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, gifts might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid gift if sums or funds are not available. A donation cannot be made of anything to be in future (e.g. future revenues of a property).
EXISTENCE OF PROPERTY NECESSARY ALSO IN CASE OF HIBA-
A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a gift of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manqfi may thus be transferred by the donor during his lifetime by gift or by bequest and be the subject of gift even though they are not in existence at the time of the gift.
Equity of Redemption can be subject of a valid gift-where the property gifted is subject to a usurfructory mortgage, what is gifted is merely the equity of redemption and not physical possession of the property itself.
ORAL GIFT OF IMMOVEABLE PROPERTY - In view of sec. 123, 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 view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any. Under the Muslim law, an oral gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession of the gifted property had also been.
WHEN GIFT MAY BE SUSPENDED OR REVOKED
Section 126 of the Transfer of Property provides for conditions where a gift may be revoked.the following are those conditions-
(1) That the donor and donee must have agreed that the gift
suspended or revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the
(3) the donor and donee must have agreed to the condition at
time of accepting the gift; and
(4) the condition should not be illegal, or immoral and should
repugnant to the estate created under the gift. Section 126 is controlled by sec. 10. As such, a clause in the gift deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A gift, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting to legal remedy in a competent court of law.
A Mohammedan on the other hand can revoke a gift even after delivery of possession except in the following cases:
(1) When the gift is made by a husband to his wife or by a wife to her husband;
(2) when the donee is related to the donor within the prohibited degrees;
(3) when the gift is Sadaka (i.e. made to a charity or
for any religious
(4) when the donee is dead;
(5) when the thing given has passed out of the donee's
by sale, gift or otherwise;
(6) when the thing given is lost or destroyed;
(7) when the thing given has increased in value, whatever be the cause of the increase;
(8) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and
(9) when the donor has received something in exchange for the gift
Except in those cases, a gift may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.
'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The principle behind this is that he who accepts the benefit of a transaction must also accept the burden of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need not be any separate and express acceptance of the onerous condition also at the same time. The acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at the time of the gift the donee was not aware of such condition, specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.
The essential condition to constitute a universal donee is that the gift must consist of the donor's whole property. If any portion of the donor's property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. This concept is embodied in section 128 of the Transfer of property Act. Where a Mahomedan made a gift of the whole of his estate to his son and directed him to pay his debts, the son was a universal donee and he was liable to pay all debts of the donor. There is no rule of Mahomedan law which conflicts with the provisions of this section.
The conception of the term gift and subject matter of gift has been an age old and traditional issue which has developed into a distinct facet in property law. Different aspects related to gift in property act and its distinction with the Mohammedan law and its implications has been the major subject matter of this article.
In considering the law of gifts, it is to be remembered that the English word ‘gift’ is generic and must not be confused with the technical term of Islamic law, hiba.
The concept of hiba and the term “gift as used in the transfer of property act, are different. As we have seen in the project that Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift.
The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d) the subject-matter; (e) the transfer; and the acceptance
Thus this striking difference between the two laws relating to gift forms the base of this project in understanding its underlying implications.