Rule
A gift is the transfer of certain existing movable or immovable property, made voluntarily and without consideration, by the donor to the donee, and accepted by or for the donee (S.122).
- Acceptance must be made in the donor's lifetime and while he can still give. If the donee dies before accepting, the gift is void.
- For immovable property, the gift must be made by a registered instrument, signed by or for the donor and attested by at least two witnesses (S.123).
- Once complete, a gift can be revoked only in the narrow cases in S.126.
A gift moves property for nothing in return, so the law insists on clear proof: a registered, attested deed for land, and the donee's own acceptance. No one can be made an owner against his will.
| Provision | What it says |
|---|---|
| S.122 | Definition, and acceptance in the donor's lifetime |
| S.123 | Form: registered and attested deed for immovable property; deed or delivery for movable |
| S.124 | A gift of existing and future property is void as to the future property |
| S.125 | Gift to several: void as to the share of a donee who does not accept |
| S.126 | When a gift may be suspended or revoked |
| S.127 | Onerous gifts: benefit and burden go together |
| S.128 | Universal donee is liable for the donor's debts |
| S.129 | Gifts in contemplation of death and Muslim law gifts are outside this chapter |
Requirements
| # | Requirement | What to check |
|---|---|---|
| 1 | Existing property, movable or immovable | Future property cannot be gifted (S.124) |
| 2 | Transfer of ownership | Not a mere promise to give |
| 3 | Voluntary | Free consent, no fraud, coercion or undue influence |
| 4 | Without consideration | Any price makes it a sale or exchange |
| 5 | Acceptance by or for the donee | In the donor's lifetime. Express or implied |
| 6 | Proper form (S.123) | Immovable: registered deed, signed, two attesting witnesses. Movable: registered deed or delivery |
Delivery of possession is not required for a gift of immovable property. The registered and attested deed, with acceptance, completes it (Renikuntla Rajamma v K Sarwanamma, 2014).
Revocation (S.126)
- A gift may be suspended or revoked on an event agreed between donor and donee, if the event does not depend on the donor's will alone.
- A gift that the donor may revoke at his mere will is void wholly or in part.
- A gift may also be revoked in any case where, if it were a contract, it could be rescinded, for example for fraud, coercion or undue influence.
- Ingratitude or a change of mind is not a ground under the TPA.
- For senior citizens, S.23 of the 2007 Act adds a remedy: a gift made on condition that the donee provides basic amenities can be declared void by the Tribunal if he fails to do so.
Onerous and universal gifts
- Onerous gift (S.127): where a gift is in the form of one transfer carrying a burden, the donee cannot take the benefit and refuse the burden. Where there are two separate gifts, he may accept one and refuse the other.
- A minor donee of an onerous gift may repudiate it on reaching majority.
- Universal donee (S.128): a donee who takes all the donor's property is personally liable for the donor's debts and liabilities at the time of the gift, to the extent of the property.
Illustrations
1. Valid gift of a flat
- Facts: A mother executes a registered gift deed of her flat to her daughter, attested by two neighbours. The daughter signs in acceptance.
- Result: A complete gift (S.122, S.123).
- Why: All elements and the required form are present.
2. Unregistered gift of a house
- Facts: A father writes on plain paper "I gift my house to my son" and hands over the keys.
- Result: No gift. Title does not pass.
- Why: S.123 requires a registered, attested instrument for immovable property.
3. Gift of jewellery
- Facts: A grandmother hands her gold necklace to her granddaughter, saying it is hers.
- Result: A valid gift.
- Why: For movable property, delivery is enough (S.123).
4. Future property
- Facts: A says, "I gift you the house I will buy next year."
- Result: Void (S.124).
- Why: Only existing property can be gifted.
5. Mortgaged building
- Facts: An uncle gifts a building worth Rs.1 crore to his nephew. It carries a mortgage of Rs.30 lakhs. The nephew accepts.
- Result: The nephew takes the building subject to the mortgage (S.127).
- Why: He cannot take the benefit of a single transfer and refuse its burden.
6. Agreed condition
- Facts: A registered gift deed of a plot says it is revoked if the son uses it for unlawful purposes. Both agreed to this. The son runs a gambling den there.
- Result: The gift can be revoked (S.126).
- Why: The event was agreed and does not depend on the father's will alone.
7. Ingratitude
- Facts: A father gifts a flat to his son by a registered deed with no conditions. The son later neglects him.
- Result: The father cannot revoke under the TPA.
- Why: Ingratitude is not a ground in S.126. Any relief must come under the 2007 Act if its conditions are met.
Key Cases
K Balakrishnan v K Kamalam, (2004) 1 SCC 581
- Facts: A mother gifted property to her minor son by a registered deed, keeping a life interest. The gift was later challenged for want of acceptance.
- Held: Acceptance can be implied from conduct and the circumstances. The gift was valid.
- Principle: Acceptance need not be formal or express.
Renikuntla Rajamma v K Sarwanamma, (2014) 9 SCC 445
- Facts: A registered gift deed reserved the donor's right to enjoy the property for life. The donor later tried to cancel it.
- Held: Delivery of possession is not essential under S.123. Keeping a life interest does not make the gift invalid. The gift could not be revoked.
- Principle: A registered, attested and accepted gift of land is complete without delivery.
Distinctions
| Basis | Gift (S.122) | Sale (S.54) |
|---|---|---|
| Consideration | None | Price |
| Form (immovable) | Registered deed and two attesting witnesses, whatever the value | Registered deed for Rs.100 or more |
| Acceptance | Essential, in donor's lifetime | Part of the contract |
| Revocation | Only under S.126 | Not revocable |
| Basis | Gift under TPA | Hiba under Muslim law |
|---|---|---|
| Law | S.122 to S.128 | Muslim personal law (S.129 saves it) |
| Form | Registered deed for immovable | Declaration, acceptance and delivery of possession. No writing needed |
| Delivery of possession | Not needed for immovable | Essential |
| Revocation | Only under S.126 | Possible in some cases |
Exam Scenario
Mrs. Sharma executes a registered, attested gift deed of her flat in favour of her son Rohit, who is abroad and does not take possession. Two years later she gifts the same flat to her daughter Priya by another registered deed, and Priya moves in. Rohit returns and claims the flat. Advise.
Approach
- Met: Existing immovable property, voluntary, without consideration.
- Met: Registered instrument with two attesting witnesses (S.123).
- Issue: Acceptance by Rohit. It may be express or implied (K Balakrishnan, 2004). Absence from the flat is not refusal.
- Met: Possession was not needed (Renikuntla Rajamma, 2014).
- Not met (for Priya): If Rohit accepted, Mrs. Sharma no longer owned the flat when she made the second gift.
Conclusion: If Rohit accepted the first gift in his mother's lifetime, the gift was complete and he has the better title. The second gift passes nothing.
Remedy: Rohit can sue for a declaration of title and possession against Priya. If he never accepted, the first gift failed and Priya's gift stands.
Scenario 2
A father gifts his only house to his son by a registered, attested deed. The son accepts and gets the house mutated. Later the father says the son is ungrateful and wants the house back. Advise the father.
Approach
- Met: All elements of S.122 and the form in S.123.
- Not met: No agreed condition for revocation (S.126).
- Not met: Ingratitude is not a ground under the TPA.
- Issue: S.23, 2007 Act, applies only if the gift was made on condition that the son provides basic amenities and he has failed.
Conclusion: The father cannot revoke under the TPA.
Remedy: He can apply to the Maintenance Tribunal under S.23 if the gift was conditional on care, and can claim maintenance under the 2007 Act in any case.
Recall Check
- What are the elements of a gift under S.122?
- What form does S.123 require for immovable property?
- Is delivery of possession needed for a gift of land?
- When can a gift be revoked under S.126?
Flashcards
How does S.122 define a gift?
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 donee.
What is the mode for gift of immoveable property (S.123)?
Registered instrument signed by or on behalf of the donor, attested by at least 2 witnesses.
What is the mode for gift of moveable property (S.123)?
A registered instrument signed by or for the donor, or delivery. Either suffices.
Can a completed gift be revoked under the TPA?
Only under S.126: (1) on an agreed event that does not depend on the donor's will alone, or (2) where, if it were a contract, it could be rescinded (fraud, coercion, undue influence). Change of mind or ingratitude is not a ground.
What is an onerous gift (S.127)?
A gift carrying a burden. If it is one transfer, the donee who accepts must take the burden too (for example, mortgaged property).
Is acceptance essential for a gift?
Yes. Under S.122 the donee must accept during the donor's lifetime and while he is still capable of giving. If the donee dies before accepting, the gift is void.
Can future property be gifted?
No. Under S.124 a gift of existing and future property is void as to the future property.
Define "gift" under S.122.
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 donee.
What two formalities does S.123 require for gift of immovable property?
- (1) A registered instrument signed by or on behalf of the donor - (2) Attestation by at least two witnesses. Delivery of possession is not required.
Can a gift of future property be made?
No. S.124 makes a gift void as to future property.
When can a gift be revoked under S.126?
(a) On an event agreed between donor and donee that does not depend on the donor's will alone, or (b) in any case where, if it were a contract, it could be rescinded.
What is an onerous gift?
S.127: a gift subject to a burden, such as property carrying a mortgage. A donee who accepts a single onerous transfer must bear the burden.
Can a minor be a donee?
Yes. A gift to a minor may be accepted by his guardian, and acceptance may be implied. A minor may repudiate an onerous gift on reaching majority (S.127).