Gifting of Properties to the beloved ones on different occasions is a way of expression of love and affection . Gifts are made even for other purposes including philanthropic, religious or charitable purposes. When such gifts are made and accepted, According to Law, there is transfer of property in favour of the Donees from the Donors. Transfer of property can be both movable and immovable. Whereas this Article, deals with gifts of immovable property.
‘Gift’, is defined in section 122 of the Transfer of Property Act, 1882, as a transfer of certain existing movable or immovable 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. Section 123 of the Act stipulates the procedure as to how transfers of immovable properties are affected.
Characteristics:
For a valid Gift, it must have the following essential characteristics; (1) Donor must be a competent person, (2) it must be made voluntarily, (3) it should be without consideration,(4) there must be an offer by the Donor, (5) there must be an acceptance by the donee or on his behalf, (6) acceptance must be done during the life time of the Donor and the donee; and (7) must be an existing property and not a future one.
A gift is essentially a gratuitous transfer. In other words, non-acceptance of monetary consideration in return from the donee by the Donor is the hallmark of a gift. Even an undertaking by the donee to pay a token sum would tantamount to consideration and the transaction would not qualify to be treated as a gift. A gift cannot be made with an intention of placing the donee under a legal obligation. Section 123 of the Transfer of Property Act, postulates that an immovable property requires registration and for want of registration oral gift is not admissible in view of Section 17 of the Registration Act. Therefore, gift of immovable property can be effected only through a registered instrument. The Donor must sign a deed of Gift and atleast two witnesses must attest his signature. A deed of gift needs the donee’s acceptance and therefore the general practice is that donee, is made a party to the deed and also to be made an executing party. If the donee does not accept the gift, the mere fact of registration will not make the gift legal. A gift is complete upon the execution of the deed of gift and its delivery to the donee, which constitutes his acceptance of the gift.
Contents:
A gift deed must contain a brief narration as to how the Donor got possession of the property; whether it is his self-acquired property or his share of ancestral property, whether the property is encumbered or not and if encumbered, how he will indemnify the Donee against any monetary loss, whether the Donor is competent to deal with the property and whether the donee is competent to accept the gift.
If the gift is to a Public trust or a charitable institution, it is always advisable to follow the procedure adopted for affecting the sale of an immovable property by scrutinising the title as to its ownership, marketability and encumbrance. It must be in writing.
Intention of maker:
The donee obtains his interest in the property immediately on execution of the gift deed by the Donor. Hence, even if there exists a recital in the gift deed that the gift is revocable, in effect it is irrevocable. It is the intention of the maker and not the nomenclature of the document, which requires consideration to find out as to whether a document is a gift deed or not and the document must be read as a whole. Further, Donor can gift to the donee only an existing property and not the future property. The Donor must ensure that, the donee is competent enough to accept the gift. Only a major can make a gift and not a minor unless the guardian of the minor is empowered to do so. A minor can accept a gift, if he is capable of understanding the transaction. Otherwise, he can accept it through his Guardian. Indian Registration Act requires that all non-testamentary gifts if reduced into writing require registration with an exception as provided in sec.129 of the Transfer of Property (T.P.) Act dealing with the gifts of Mohammedans.
Acceptance and delivery:
Acceptance of the gift must be given by the Donee or on his behalf during the lifetime of the Donor and if the donee dies before acceptance, the gift becomes void. The Donee is not bound to accept the gift in the same form, in which it is offered to him. Mere dedication of some land for the purpose of a temple will not qualify to be considered as a gift in the absence of acceptance by the donee. Post-acceptance by the donee of the gift also is impermissible. A gift is not valid unless it is accompanied by delivery of possession of the subject of the gift from the Donor to the Donee. But, where from the nature of the case physical possession cannot be delivered the Donor must do all the Acts so as to entitle the donee to obtain possession.
Undue influence:
While effecting any gift, the Donor should not be under pressure or under undue influence of the Donee and the gift should emanate from a free will and at the discretion of the Donor. Suppose, X, the Donor, has been looked after by Y, the Donee during the last phase of his life and thereby X develops love and affection towards Y leading to execution of the deed of gift. This circumstance cannot be considered to be a circumstance of undue influence. If a gift is not spontaneous and independent, there may be a case of undue influence against the Donor.
Separate Property of Co-Parcener:
The Karta of a Hindu family has the power to make a gift within reasonable limits of the ancestral immovable property for pious purposes. A Co-Parcener, throwing his separate property into common stock makes no gift. It has been held by the Supreme Court in the Mallesappa Bandappa Desai vs.Desai Mallappa [1961 (3) SCR 779] case; that the doctrine of throwing into common stock inevitably postulates, that the Owner of a separate property is a Co-Parcener, who has an interest in the Co-Parcenary property and desires to blend his separate property with the Co-Parcenary property. The Act by which the Co-Parcener throws his separate property to the common stock is a Unilateral Act. By his individual volition he renounces his individual rights in that property and treats it as a property of the family. When a Co-Parcener throws his separate property into the common stock, he makes no gift under the Transfer of Property Act.
A minor can accept a gift and the minority by itself is not a bar to his acceptance of the gift. A gift can be made to a class of persons provided the members there of, are existing at the time of gift. Where a gift is made to two Donees and the gift to one of them is invalid, the other would take the whole estate. Acceptance of gift may be either express or implied. Even silence on the part of the Donee is sufficient to infer that the Donee accepted the gift.
Differs from Sale:
A gift is distinguishable from a Grant, Sale and Will.
In the case of grant, neither acceptance nor delivery of possession of the property is necessary. A gift is voluntary and without consideration while a grant may lack both. A gift conveys the corpus while a grant may convey only the right of enjoyment of property without conveying any interest in the corpus. A gift must be unconditional, but a grant need not be so. Property acquired by gift is transferable, but one obtained by grant is not necessarily so and the grant depends upon its subject, purpose and terms. A grant may be revocable at the Will of the grantor, while a gift is irrevocable at the will of the Donor.
In the case of sale, consideration in money or money’s worth is a must while a gift is a voluntary transfer of property without any consideration. In sale of property, unlawfulness of consideration would render the whole transaction void since consideration is an essential element of sale. But, in the case of a gift, as consideration is of no consequence, unlawfulness of consideration would not invalidate the gift.
The criteria to be adopted for ascertaining whether an instrument is a Will or not is by examining whether the disposition takes effect during the life time of the Executant of the instrument or whether it takes place after his demise and whether it is revocable or not since in the case of gift, the transfer of property takes place immediately upon execution and delivery of the gift deed. In the case of a Will, the Donor must reserve to himself the power of revocation, the Will must not be expressed and intended to operate in praesenti but only in future on the death of the Donor and regard must be had to the intention of the Donor and the language used by him.
When invalid:
A gift is considered as invalid; (a) if the property gifted is not in praesenti, (b) if one of the Donees refuses to accept his share (in respect of that Donee), when the gift is made jointly to the Donees, (c) if it is a revocable gift, (d) if it is an illegal transfer and (e) if it is transferred by an incompetent person.
If the Gift is given to the family members, Stamp Duty is applicable as per Karnataka Stamp Act. The family members in relation to the Donor for the said purpose means; husband, wife, son, daughter, daughter-in-law, grand children etc.
If it is other than the family members, that is any trust, charitable institutions etc., Stamp Duty is payable as a Conveyance as per the market value.
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