Introduction – A Gift is
a) transfer of ownership of a property (movable or immovable);
b) such transfer without any compensation or consideration in monetary value.
Relevant Act – Transfer of Property Act,1882 (TPA, 1882).
Definition – Sec 122 of TPA, 1882 – “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration,
Parties to the Gift:
The person who makes the Gift is called the donor;
The person who receives the Gift is called the donee;
Acceptance of Gift:
Acceptance when to be made —Such acceptance must be made during the lifetime of the donor
Parties to a gift transfer –
Donor
• Must be a competent person major and of sound mind; Gift by a minor or insane person is void.
• Must have right to make the gift, to be determined by his ownership rights at time of transfer.
Donee
• Need not to be a competent person but must be in existence at time of making gift.
• Gift made to an insane person, or a minor, or even to a child existing in the mother’s womb is valid subject to its lawful acceptance by a competent person on his/her behalf.
Essential elements – There are the following five essentials of a valid gift:
1. Transfer of ownership – The donor must divest himself of absolute interest (all rights and liabilities) in the property and vest it in the donee.
2. Existing property (Sec 124 of TPA, 1882) – Property may be of any kind, movable, immovable, tangible, or intangible, but it must be in existence at the time of making a gift, and it must be transferable.
3. Transfer without consideration – A gift must be gratuitous. Consideration, here shall have the same meaning as given in Section 2(d) of the Indian Contract Act. The consideration is pecuniary in nature, i.e., in monetary terms. Mutual love and affection are not pecuniary consideration
4. Voluntary transfer with free consent – Free consent is when the donor has the complete freedom to make the gift without any force, fraud coercion, and undue influence.
5. Acceptance of the gift – Acceptance may be either express or implied. Property cannot be given to a person, even in gift, against his/her consent.
Where the donee is incompetent to contract, e.g., minor or insane, the gift must be accepted on his behalf by a competent person i.e. a guardian or his parents.
The acceptance must be made during the lifetime of the donor and while he is still capable of giving.
Modes of making a gift – Sec 123 of TPA, 1882 – Two modes depending upon the nature of the property.
Immovable property – Registration of the transfer is necessary.
Movable property – Either by registration or by delivery of possession.
Difference between Will and Gift –
| Parameter of comparison | Will | Gift |
| Governing Act | Indian Succession Act, 1925 | Transfer of Property Act, 1882 |
| Type | This type of transfer of property will take effect after the death of the person executing the will. | This type of transfer of property is immediate. |
| Registration | Registration of will is not compulsory, but to avoid disputes in the future, registering the will is advisable. | Gifts that involve immovable property need to register under transfer of property act; Stamp duty should be paid based on the value of the property. |
| Revocation | Will is an essentially ‘revocable’ instrument. A Will is revocable, at any time during his lifetime, by the testator before he dies. | The transaction of gift, once made by the donor and accepted by the donee, is full & final, and then, it cannot be revoked by the donor, in the sense that, he cannot claim-back the gifted-property from the donee. |
| Witnesses – and their role | For a will to be valid, two witnesses’ signature is a must. The date and place should be precise, all the terms need to be transparent and liable. Proving the legator is physiologically stable during the making of the will is essential. | For a gift deed to be valid, it needs to be registered mandatorily to have legal standing in the present or future. There needs to be the presence of at least two witnesses and approval of donee in the form of signature. |
| Acceptance by beneficiary | Acceptance of legatee is not essential in case of will. | Acceptance by donee is must in case of gift. |
SAMPLE GIFT DEED
Property No. = 123, ABC Nagar
Total Plinth/Covered Area of property = 000 Square Feet
Stamp Duty =
Stamp No/Date =
Issued by =
This Deed of Gift (“Gift Deed”) is made and executed at _____ on this ______ day of _____, 20XX, by
XYZ, wife of Shri PQR resident of________, (hereinafter called the `DONOR’) which expression shall unless repugnant to the context would include his/her/their heirs, successors, executors, nominees, administrators, beneficiary(ies), legal representative and assigns of the one part.
IN FAVOUR OF
ABC, Son of Shri ______and resident of _______, (hereinafter jointly called the ‘DONEES’) which expression unless repugnant to the context would include his/her/their legal heirs, successors, executors, nominees, administrators, beneficiary(ies), legal representative and assigns of the other part.
WHEREAS the DONOR was allotted a Flat No_____________ sq.ft., Covered area (approximately) in addition to Balcony, Common Stilt and Passage area etc., in the residential colony known as123, ABC Nagar, (hereinafter referred to as the “said Property”).
AND WHEREAS the DONOR became the absolute owner of the said Property by virtue of a Conveyance Deed registered on ____________.
And whereas in the manner stated above, the DONOR became the absolute legal owner and in legal possession of the above said Property. The DONOR has full right and absolute authority to transfer the same in whole or in parts, in any manner, the DONOR likes
AND WHEREAS the said Property is the self acquired property of the DONOR and whereas her legal heir(s) or any other person(s) except the DONOR have no rights, titles and interest in the said property, and the DONOR is fully competent and empowered to enter into this Gift Deed with the DONEES.
AND WHEREAS the DONOR is the rightful owner of the said Property and the DONOR has full right and absolute authority to sell and transfer the same in whole or in parts, and enter into Gift Deed with the DONEES in respect of the aforesaid Property in his sole discretion.
AND WHEREAS the DONEE is the son of the DONOR, and due to his natural love and affection for the DONEES, the DONOR wishes to gift Flat No _____________(approximately) in addition to Balcony, Common stilt and Passage area etc., in the residential colony known as The New Media Co-op. Group Housing Society Ltd, (hereinafter referred to as the “said Property”).
AND WHEREAS the said Property is the DONOR’s self acquired property and is free from all liens, encumbrances, sale, charges or mortgage, litigation, Court injunctions etc. and the DONOR has full power, title and absolute discretion to dispose of, gift out the same in any manner she likes.
AND WHEREAS the DONOR is desirous of gifting her said Property to the DONEES out of love and affection.
NOW THIS DEED WITNESSETH AS UNDER:-
1. That out of her natural love and affection for the DONEE, the DONOR voluntarily and without any monetary consideration and with her free will, without coercion or under influence from anybody and in full possession of her senses, doth hereby give, transfer and convey, the said Property including the proportionate right in land beneath the same, by way of Gift in favour of the DONEE, absolutely and forever for all purposes.
2. That the DONEE has accepted the said gift and in token of his acceptance, the DONEE has also signed this Gift Deed.
3. That the DONOR has handed over the peaceful actual physical possession of the said Property to the DONEE on the spot and hereafter, DONOR has severed her rights, title and attachment from the said Property.
4. That Now the DONOR, has no right, title, interest, claim or concern of any nature with the above said Property and henceforth the DONEE has become the absolute owner with physical possession of the said Property with all rights, titles, interest, privileges, possession, easement and fixtures in ways and other rights whatsoever thereto, and the DONEE hold the same absolutely and forever for all purposes.
5. That any other person(s) related to the DONOR (except the DONEE), any successor or any other else will have no right, title or interest of any nature whatsoever in the aforesaid Property or any objection if raised by anybody regarding this Gift Deed shall be considered as null and void.
6. That the DONOR, besides the DONEE is left with no claim, interest or title in the donated property and the DONEE has become the actual owner of the donated Property, and no one claiming any rights through the DONOR shall not be entitled to dispute the present Gift Deed on any ground whatsoever.
7. That henceforth, the DONEE is fully entitled to use, enjoy and utilize the said Property in any manner, with full and unrestricted right to sell, alienate, mortgage, or deal with in any manner of the said Property along with construction or modifications carried on by the DONEE in the said Property as absolute owner, without any claim, hindrance or objection by the DONOR or any other person(s) claiming through or under DONOR.
8. That the said Property is free from all sort of encumbrances such as prior sale, litigation gift, mortgage (Registered or Un-registered), interferences, obstruction from any quarter and family disputes etc.
9. That the DONEE can get the said Property mutated in his own names in the concerned department and authority like society, municipal corporation electricity board etc. along with security deposit laying with concerned department on the basis of this gift deed or its certified true copy.
10. That hereafter, the house tax, water and electricity charges and other dues and demands, if any, payable in respect of the said Property shall be paid by the DONEE and the DONOR will not be responsible for the payment of the same for any period whatsoever.
11. That all the expenses of this gift deed, viz, stamp duty, transfer duty, registration charges shall be borne and paid by the DONEE.
12. That all original concerned documents in respect of the said Property have been handed over by the DONOR to the DONEE at the time of execution of this Gift Deed.
IN WITNESS WHEREOF the DONOR has executed this deed of gift and the DONEES has also accepted the same in token of acceptance thereof, on this _____ day of _______, 20XX.
WITNESSES:-
1.
DONOR
2.
DONEE
Schedule of Property
Flat No 706, Floor-7th, The New Media Co-op. Group Housing Society Limited, GH-10, Sector 47, Gurgaon, Haryana measuring 1505 sq.ft., Covered area (approximately) in addition to Balcony, Common stilt and Passage area etc., in the residential colony known as The New Media Co-op. Group Housing Society Ltd.
WITNESSES:-
1.
DONOR
2.
DONEE
