Transfer of Property Through Gift Deed

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Last Updated on September 7, 2018 by Legalseva.net

Every work done must be within the framework of law and hence must be legal and not illegal which can cause troubles in future. Thus, one must have knowledge about the legality and provisions of gift deeds before producing it.

  1. WHAT IS MEANT BY TRANSFER OF PROPERTY AND WHICH LAW DEALS WITH IT-

The transfer of property is dealt under the Transfer of Property Act, 1882 and the term ‘’transfer of property’’ is defined under section 5 of this Act. It says that: “ In the following sections ‘’transfer of property’’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and  one or more other living persons, and ‘’to transfer property’’ is to perform such act.

In this section ‘’living person’’ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall effect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.’’

Also Read- CHECKLIST FOR BUYING PROPERTY IN CHANDIGARH PANCHKULA MOHALI ZIRAKPUR DERABASSI KHARAR BADDI

The following transactions are not transfer of property:

  1. Partition
  2. Family settlement or agreement
  3. Release deed
  4. Relinquishment and surrender
  5. Creation of an easement
  6. Charge

 

  1. WHAT MAY BE TRANSFERRED-

According to section 6 of Transfer of Property Act, “Property of any kind can be transferred except:

  1. SpesSuccessionisi.e; the chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on death of a kinsman, any other mere possibility of a like nature.
  2. Right of re-entry for breach of condition subsequent
  3. An easement apart for breach of condition subsequent
  4. An easement apart from the dominant heritage
  5. Personal right
  6. Right to future maintenance
  7. Mere right to sue
  8. Right of public office, salaries and pensions
  9. Stipends
  10. Transfer opposed to the nature of the interest, for unlawful object or consideration, for disqualified person

Also Read- HOW TO PROBATE A WILL IN CHANDIGARH PANCHKULA MOHALI

 

  1. PERSONS COMPETENT TO TRANSFER-

A Person must be competent to transfer as provided under section 7 of T.P Act, 1882 and the conditions for competency of transferor are:

  1. Transferor should be competent to contract (sec 11 & 12 of Indian Contract Act)
  2. Transferor should be owner of the property to be transferred or he must have authority to transfer.
  3. Transferor may transfer the property in circumstances, to the extent and in manner which may be allowed by law for the time being in force.

Also Read- WILL REGISTRATION PROCESS IN CHANDIGARH

 

  1. GIFT OF PROPERTY-

Chapter 7 containing sections 122 to 129 lay down the provisions relating to Gift of Property’. It refers to both immovable and movable properties. Subject matter is transfer of absolute interest in the property, immovable or movable. The notable point is there is no considerationfor transfer and gift of property is not valid and enforceable unless it is accepted by the donee(transferee.)

Also Read- Property Transfer in Chandigarh Panchkula Mohali Zirakpur

 

  1. MEANING OF GIFT-

When a person transfers some property, movable or immovable to another voluntarily without consideration and same is accepted, it is called Gift.

It is a voluntary transfer of an absolute interest in the property, movable or immovable,without any consideration to another, and the same is accepted by the donee.

Also See – PAY PROPERTY TAX IN ZIRAKPUR

 

  1. DEFINITION-

Section 122 of T.P Act defines ‘giftis the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person to another and accepted by or on behalf of the latter(done).

The person who transfers the property is called ‘Donor’ and the person to whom it is transferred is called ‘Donee’. It is very essential that the acceptance of the gift shall take place during the lifetime of the done. Otherwise, it becomes void.

Also Read-  DRT AND TENANCY RIGHTS: WHERE THE DISPUTE LIES?

 

  1. GIFT HOW MADE AND EFFECTED-

Section 123 of the Act deals with the mode of making gift. For making gift of an immovable property, the transfer must be effected by a registered instrument signed by two witnesses. With regard to the gift of movable property, registration is not compulsory but optional. It may be effected by mere delivery. Section 123 runs as follows:

“For the purpose of making a gift of immovable property, the transfer must be affected 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 affected 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.

Also Read- HOW TO EVICT TENANT OUT OF RENTED PREMISES

 

  1. EFFECT OF REGISTRATION OF GIFT-

As stated above, registration is compulsory in case of making gift of an immovable property and it is optional in case of movable. Now the question is whether non-registration of immovable property renders the gift ineffective? Registration of gift is not compulsory but optional, as held in the case of KalyanasundaramPillai vs. Karuppa .

Also Read- HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

 

  1. SUSPENSION & REVOCATION OF GIFT-

The general rule is- gift once completed, cannot be suspended or revoked. However, Sec. 126 of The T.P Act provides for revocation of gift under the following two circumstances.

  1. In such a case if it was a contract voidable at the option of donor.
  2. If there is an agreement between donor and done to that effect.

Even if the gift is validly revoke in either of the cases stated above, the donor will not be able to recover the property if is passed into the hands of a bonafide transferee for consideration without notice.

Also Read- LEGAL HEIR CERTIFICATE IN CHANDIGARH

 

  1. KINDS OF GIFT-

i-VOID GIFTS:

The following gifts are declared void:

  1. Gift made for an unlawful purpose. (sec 6)
  2. Gift subject to condition and the fulfillment of which is impossible(sec 6), then it becomes void.
  3. If donee dies before acceptance (sec 122), it becomes void.
  4. Gift by a person incompetent to contract viz. Minor, lunatic etc. (sec 7) is void. (sec 11 of Indian contract act 1872)

 

  1. ONEROUS GIFTS:

Sec 127 deals with ‘onerous gifts’. A gift always may not be beneficial in character. It may also create an obligation to the done. For instance ‘A’ has shares in company ‘X’ which is prosperous and also in company ‘Y’, which is in crisis. Dividend is expected from the former, while heavy calls (call in arrear) from the latter. If ‘A’ wants to give in gift to ‘B’ the shares of both companies ‘X’ & ‘Y’, it is called ‘onerous gift’. ‘B’ (DONEE) has to accept both or refuse the both. But, he (B) cannot accept only the shares of ‘X’ company.

 

  1. UNIVERSAL DONEE:

Section 128 speaks about Universal Donee. A universal done is one whom all the properties of donor have been given and is liable for all debts and liabilities of the donor at the time of the gift. If the property is only immovable, he is not a universal donee.

 

  1. DEATH BED GIFT:

When a gift is made by a donor, when he was in critical condition, likely to cause his death, it is called ‘Donatio Mortis Causa’.This Act deals with immovable property whereas the section 191 of Hindu Succession Act deals with the concept of movable property. This gift has no effect before the death of the donor.

Also Read- FREE LEGAL ADVICE IN CHANDIGARH, PANCHKULA, MOHALI, ZIRAKPUR

 

  1.  CONCLUSION-

Under section 122 of the T.P Act, ‘’ Gift’’ is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another person called the donee and accepted by or on behalf of the donee. The distinction between a conveyance and a gift lies in the nature of consideration. In respect of a conveyance, there is consideration by way of money, while in the case of gift, the consideration is natural love and affection. No gift can be made in respect of ancestral property;property should be the self- acquired one.

Also Read- HOW TO GET FREE LEGAL ADVICE ONLINE IN INDIA

 

This post is written by Kritika Bakshi, Student of Chaudhary Charan Singh University (2019 session).

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