A voluntary transfer of personal property without consideration. A
parting by owner with property without pecuniary consideration. A
voluntary conveyance of land, or transfer of goods, rom one person to
another, made gratuitously, and not upon any consideration of blood or
money . Section 122 of the Transfer of Property Act, 1882 defines
”GIFT”.
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
Recent Case-Law As To Oral Gift Deed:
# Dr. Nathu Lal Vaishi & Anr. . vs G.S.Kamal Advocate & Anr on 12 January, 2010, Delhi High Court
# Sneh Gupta vs Devi Sarup & Ors. on 17 February, 2009, Supreme Court of India
# Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr.,2005 (2) AWC 1342
# Mt. Akbari Begam vs Rahmat Husain And Ors. , AIR 1933 All 861
# Smt. Sudha Devi And Anr. vs Smt. Shanti Devi,1995 (2) BLJR 1328
# Ziauddin Ahmed vs M.A. Raoof (Died) By Lr., 2002 (5) ALD 830
# Hasan Ali vs Hafiz Mustak Ali, 1986 (2) WLN 1
# Mahboob Sahab vs Syed Ismail & Ors, 1995 AIR 1205
# Chota Uddandu Sahib vs Masthan Bi (Died) And Ors., AIR 1975 AP 271
# Shaik Nurbi vs Pathan Mastanbi And Ors., 2004 (3) ALD 719
What Is Onerous Gift?
‘Onerous gift’ is a gift made subject to certain charges imposed by the donor on the donee.”
-The rule is based on equity, which speaks the person who accepts the benefit of a transaction must also accept the burden of the same.
- It applies equally to Hindus and Mahomedans.
Who is Universal Donee?
Illustration:
A is father. B is son. A makes a gift of the whole property of his estate to B. A directs B to pay his debts and then B is a Universal Donee. Thus, B is liable to pay all debts of donor.
-Section 128 of the Transfer of property Act speaks about ” Universal Donee.
-The foremost condition is the gift should consist of the whole property of the donor.
-In case of a gift pertaining to some portion of the property of donor, such donee is not a Universal donee.
Deference between ” Hiba” and ”Gift”:
HIBA (The Mohammedan law)
GIFT (The English law)
i) As to a valid gift, under Mohammedan law, three essentials conditions are required: (i) declaration of gift by the donor (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of gift.
i) As to rights in property, under The English law, is classified by a division on the basis of immoveable and moveable property. The essential conditions of a valid gift are (i) The absence of consideration; (ii) the donor; (c) the donee ;(iii) the subject-matter; (iv) the transfer; and the acceptance
Gift to Hindu woman under Hindu Law:
1. Any gift to women under Hindu Law is subject to special rules of construction.
2. Whether such gift passes an absolute estate or limited estate depends upon the terms of the grant.
3. That too, it depends upon the expressions used in the terms of the grant. (Shaliq Ram vs Charanjit)
4. Under partition or in lieu of maintenance, a Hindu woman acquires an absolute estate.
5. Where the property is acquired without pre-existing right such as under a Will, gift, decree or award, her estate depends upon the terms of the instrument.
6. A Hindu , whether belonging to the Mitakshara or Dyabhaga School, can make a gift of his/her separate as also self acquired estate subject to the claims of those entitiled under the Hindu Adoption and Maintenance Act.
7. No sooner does the donor relinquish his right in the property followed by delivery of possession and acceptance by the donee than a gift is completed.
8. See sections 18 to 22 as wife, widowed daughter-in-law,minor illegitimate children, aged parents and others.
9. A Mitakshara coparcener has no power to make any gift of his coparcenery interest except small gifts based on affection.
10. The right of a wife or widow for maintenance attaches to her status so she can pursue the property even in the hands of a stranger acquiring the same with notice of her claim.
Important Case-Law On ”Gift Deed”:
# Rameshwar Pandey And Anr. vs Suresh Pandey ,2007 (2) BLJR 895
# Giano vs Puran And Ors. ,AIR 2006 P H 160
# Kikabhai Samsuddin vs Collector Of Estate Duty, AIR 1969 Guj 326
# T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
# Mst. Noor Jahan Begum vs Muftkhar Dad Khan And Ors. , AIR 1970 All 170
# Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr
# HARI SINGH AND ORS. VS KALLU AND ORS. , AIR 1952 All 149
# Virendra Singh And Ors. vs Kashiram (Deceased By L.Rs.) ,AIR 2004 Raj 196
# MOMAN LAL VS ANANDI BAI & ORS,1971 AIR 2177 , Supreme Court of India
# Hutchegowda vs Smt. Jayamma And Anr. ,ILR 1996 KAR 17
# K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan
What are the important conditions of a valid gift Hindu Law ?
i) Relinquishment of one’s proprietory right in the property. Yet it should be without any consideration.
ii) Merely registering the gift deed does not afford to pass the title of the property.
iii) Creation of right of any person must be completed by acceptance.
iv) A gift is totally different from a surrender by a Hindu widow where she does not in fact or in law purport to transfer any interest in the property surrenders.
v) In addition to that in the case of Karunamoyee vs Maya Moyi, it was observed that the widow simply withdraws herself from the estate and the reversioner steps into the inheritance as a matter of law.”
vi) Yet, in the case of Narbada Bai vs Mahadeo, it was held that in case of transfer of the whole estate, the reversioner takes the same subject to the liability for her maintenance. It is thus vividly known that the reversioner is responsible for her debts, if she relinquishes the same.
vii) Where delivery of possession is enough to complete the transaction of a gift, is abrogated under section 123 of the Transfer of Property Act. However, the restrictions on power to enter into the transaction of gift under personal law exist without any change.
Recent Case-Law As To Scribe Of Gift Deed:
# Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April, 1999, Supreme Court of India;
# Giano vs Puran And Ors.,AIR 2006 P H 160;
# Ramjeet Mahto And Ors. vs Baban Mahto And Ors. ,2003 (4) JCR 268 Jhr;
# Rameshwar Singh And Ors. vs Harendra Singh And Ors. on 30 November, 2007,Patna High Court;
# Gurdial Singh And Another vs State Of Punjab And Others on 16 July, 2009 , Punjab-Haryana High Court;
# Mahant Rattangiri vs Chairman Indian Red Cross Society … on 14 December, 2009, Punjab-Haryana High Court;
# Smt. Takri Devi vs Smt. Rama Dogra And Ors., AIR 1984 HP 11;
# Smt. Chinnamma And Ors. vs The Devanga Sangha And Ors., AIR 1973 Kant 338
# Dhruba Sahu (Dead) And After Him … vs Paramananda Sahu., AIR 1983 Ori 24
# Most. Ram Dular Devi And Ors. vs Shri Satya Narayan Prasad And Ors., 2002 (3) BLJR 1757;
Gift under Mohammedan Law:
1. A hiba (oral gift) 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.
2. 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.
3. In view of section 129 of the Transfer of Property Act, it is clear that the rule of Mahommedan Law as to gifts is not affected under the said Act.
4. Generally, 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.
5. In the case of Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors. Reported in (2009) 6 SCC 160 held thus: -”15. We may notice the definition of gift as contained in various textbooks. In Mulla’s Principles of Mohammadan Law the “hiba” is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines of Muhammadan Law defined “gift” in the following terms: “A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan 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.”…”
6. In any gift by a Mohammedan, three essential requirements have to be complied with for a valid gift : (i) Declaration of the gift by the donor. (ii) Acceptance of the gift expressed or implied by or on behalf of the donee. (iii) Delivery of such possession of the subject of the gift by the donor to the donee. (Para 20). it was further observed that ” since the deed itself makes it clear that upto the date of the execution of this deed, the executant was in possession, and there can be no oral gift without possession. Therefore, this document cannot be constituted to be a memorandum of gift but it is a gift deed itself.” (para 21).
7. It was held in the case of ”Ashiq Ali And Ors. Vs Smt. Rasheeda Khatoon And Anr[9] ”, that ” in view of the provision under Section 129 of the Transfer of Property Act, the provision of Section 123 of the Transfer of Property Act shall not affect the validity of the gift under any rule of Mohammedan Law, so if an oral gift is there and the aforesaid three requirements are fulfilled, it cannot be ignored on the ground that a gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan.
8. Registration of a gift deed cannot cure a defect, as to condition of delivery of possession.
9. Mohammedan law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors.
10. The fundamental rule of Mohammedan law as to gifts is that “the donor should divest himself completely of all ownership and dominion over the subject of the gift.
11. There must 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.
12. As to delivery of possession is concerned, irrespective of actual or constructive, the ultimate test of the delivery of possession is to see whether the donor or donee reaps the benefit.
Revocation of gift deed under Mohammedan Law:
under the circumstances mentioned infra, A Mohammedan can revoke a gift even after delivery of possession:
i) When the gift is made by a husband to his wife or by a wife to her husband;
ii) when the donee is related to the donor within the prohibited degrees;
iii) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).
iv) when the donee is dead;
v) when the thing given has passed out of the donee’s possession
by sale, gift or otherwise;
vi) when the thing given is lost or destroyed;
vii) when the thing given has increased in value, whatever be the cause of the increase;
viii) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and
ix) 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.
Is Registration Mandatory ?
Under Section 123 of the Transfer of Property Act, a gift of property, which is not registered, is bad in law and cannot confer title to the donee. Gift Deed should be stamped and registered as required. Mere delivering possession without a written instrument cannot confer any title. A deed cannot be dispensed with even for a property of small value. 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 property is invalid without a registered instrument. A gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan.
Recent Case-Law As To Registration Of Gift Deed:
# Parbati vs Baijnath Pathak And Anr. 14 Ind Cas 61
# Vasudev Ramchandra Shelat vs Pranlal Jayanand Thakar And Ors ,1974 AIR 1728
# Firm Mukand Lal Veer Kumar & Anr vs Sri Purushottam Singh & OrS,1968 AIR 1182
# Udaya Naik vs Lokanath Naik And Ors. ,AIR 1954 Ori 195
# Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr. ,2005 (2) AWC 1342
# Smt. Sanjukta Ray vs Bimelendu Mohanty And Ors. , AIR 1997 Ori 131
# Chennupati Venkatasubbamma vs Nelluri Narayanaswami ,AIR 1954 Mad 215
# Bhagabat Basudev And Ors. vs Api Bewa And Ors. ,AIR 1974 Ori 180
# Vettikuti Naydamma (Died) And … vs Mupparaju Madhusudhana Rao And ,1996 (2) ALT 185
# Fateh Ali (Died) Per Lrs. And Ors. vs M.A. Aleem And Anr. ,2003 (6) ALD 611.
Recent Case-Lae Regarding ”Stamp Duty On Gift Deed”:
# Jwala Prasad vs State Of U.P. And Ors. , 2005 (2) AWC 2271
# Hemnath By His L.Rs. And Ors. vs Jalam Singh , 1989 (2) WLN 418
# Smt.Alamma Chacko vs The District Registrar (Audit) on 22 February, 2008 , Kerala High Court
# Ms Mayawati vs Dy Commissioner Of Income-Tax , (2008) 113 TTJ Delhi 178
# Ramchandra Vishwanath Ghaisas … vs The State Of Maharashtra ,AIR 1981 Bom 164
# Maha Vidyalaya (Degree College), … vs State Of U.P. & Others on 13 January, 2010, Allahabad High Court
# Hemnath vs Jalam Singh ,1 (1990) WLN Rev 590
# Dulal Chandra Chatterjee And Ors. vs Moni Mohan Mukherjee And Ors. ,2005 (2) CHN 563
# Gift-Tax Officer vs Rajmata Shanta Devi P. Gaekwad ,2001 76 ITD 299 Ahd
# Glitter Buildcon Pvt. Ltd. vs Mr. Sanjay Grover And Ors. , 2003 VIAD Delhi 217
Important Case-Lae As To ”Attestation Of Gift Deed”:
1. Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April, 1999, Supreme Court of India
2. T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
3. Balbhadar Singh vs Lakshmi Bai , AIR 1930 All 669
4. Hari Singh And Ors. vs Kallu And Ors. , AIR 1952 All 149
5. Bishwanath Raut And Ors. vs Babu Ram Ratan Singh And Ors. ,AIR 1957 Pat 485
6. Alapati Nagamma vs Alapati Venkataramayya And Ors. ,(1935) 68 MLJ 191
7. Balappa Tippanna vs Asangappa Mallappa And Anr. , AIR 1960 Kant 234
8. S. Sundaram And Anr. vs R. Damodaraswami And Anr. ,(1986) 1 MLJ 203
9. Har Prasad vs Mst. Ram Devi ,AIR 1964 All 64
10. K. Laxmanan vs Thekkayil Padmini & Ors. on 3 December, 2008 , Supreme Court of India
Revocation Of A Gift:
Section 126 of the Transfer of Property provides for conditions where a gift can be revoked. the following are essential ingredients for revocation of gift:
i) there must be an agreement between the donor and donee that the gift shall be suspended or revoked on the happening of a specified event;
ii) such event must be one which does not depend upon the will of the donor;
iii) the condition as to the suspend or revocation should be agreed to by the donee at the time of accepting the gift. And,
iv) there must exist a ground , except want or failure of consideration, on which a contract may be rescinded.
v) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift.
vi) Section 126 is controlled by sec. 10. As such, a clause in the gift deed completely prohibiting alienation is void in view of the provisions contained in sec. 10.
vii) 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.
Conclusion:
Despite the concept of expectation of reciprocity, a gift is known to be free. Any person who is the legal owner of a property can alone make a gift of his property. Basically, a gift is the transfer of something without consideration. In other words, it can be said that a voluntary transfer of a property in consideration of love and affection to person is known as ”GIFT”. It is thus vividly known that ” the chief characteristic of a gift is that it is a transfer without any consideration.”
-x-
# Black’s Law Dictionary defines ”GIFT”
“Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the donee.
# (1930) 57 IA 282
# See section 14 (1) and (2) of the The Hindu Succession Act (Act XXX OF 1956)
# Radha bai vs Gopal, AIR 1944 Bom 50
# AIR 1948 Cal. page 84
# Smt.Ajambi (Dead) By Lr. vs Roshanbi And Others on 30 August, 2010
# 2005 (2) AWC 1342, Ashiq Ali And Ors. Vs Smt. Rasheeda Khatoon And Anr.
# 2005 (2) AWC 1342,
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
Recent Case-Law As To Oral Gift Deed:
# Dr. Nathu Lal Vaishi & Anr. . vs G.S.Kamal Advocate & Anr on 12 January, 2010, Delhi High Court
# Sneh Gupta vs Devi Sarup & Ors. on 17 February, 2009, Supreme Court of India
# Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr.,2005 (2) AWC 1342
# Mt. Akbari Begam vs Rahmat Husain And Ors. , AIR 1933 All 861
# Smt. Sudha Devi And Anr. vs Smt. Shanti Devi,1995 (2) BLJR 1328
# Ziauddin Ahmed vs M.A. Raoof (Died) By Lr., 2002 (5) ALD 830
# Hasan Ali vs Hafiz Mustak Ali, 1986 (2) WLN 1
# Mahboob Sahab vs Syed Ismail & Ors, 1995 AIR 1205
# Chota Uddandu Sahib vs Masthan Bi (Died) And Ors., AIR 1975 AP 271
# Shaik Nurbi vs Pathan Mastanbi And Ors., 2004 (3) ALD 719
What Is Onerous Gift?
‘Onerous gift’ is a gift made subject to certain charges imposed by the donor on the donee.”
-The rule is based on equity, which speaks the person who accepts the benefit of a transaction must also accept the burden of the same.
- It applies equally to Hindus and Mahomedans.
Who is Universal Donee?
Illustration:
A is father. B is son. A makes a gift of the whole property of his estate to B. A directs B to pay his debts and then B is a Universal Donee. Thus, B is liable to pay all debts of donor.
-Section 128 of the Transfer of property Act speaks about ” Universal Donee.
-The foremost condition is the gift should consist of the whole property of the donor.
-In case of a gift pertaining to some portion of the property of donor, such donee is not a Universal donee.
Deference between ” Hiba” and ”Gift”:
HIBA (The Mohammedan law)
GIFT (The English law)
i) As to a valid gift, under Mohammedan law, three essentials conditions are required: (i) declaration of gift by the donor (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of gift.
i) As to rights in property, under The English law, is classified by a division on the basis of immoveable and moveable property. The essential conditions of a valid gift are (i) The absence of consideration; (ii) the donor; (c) the donee ;(iii) the subject-matter; (iv) the transfer; and the acceptance
Gift to Hindu woman under Hindu Law:
1. Any gift to women under Hindu Law is subject to special rules of construction.
2. Whether such gift passes an absolute estate or limited estate depends upon the terms of the grant.
3. That too, it depends upon the expressions used in the terms of the grant. (Shaliq Ram vs Charanjit)
4. Under partition or in lieu of maintenance, a Hindu woman acquires an absolute estate.
5. Where the property is acquired without pre-existing right such as under a Will, gift, decree or award, her estate depends upon the terms of the instrument.
6. A Hindu , whether belonging to the Mitakshara or Dyabhaga School, can make a gift of his/her separate as also self acquired estate subject to the claims of those entitiled under the Hindu Adoption and Maintenance Act.
7. No sooner does the donor relinquish his right in the property followed by delivery of possession and acceptance by the donee than a gift is completed.
8. See sections 18 to 22 as wife, widowed daughter-in-law,minor illegitimate children, aged parents and others.
9. A Mitakshara coparcener has no power to make any gift of his coparcenery interest except small gifts based on affection.
10. The right of a wife or widow for maintenance attaches to her status so she can pursue the property even in the hands of a stranger acquiring the same with notice of her claim.
Important Case-Law On ”Gift Deed”:
# Rameshwar Pandey And Anr. vs Suresh Pandey ,2007 (2) BLJR 895
# Giano vs Puran And Ors. ,AIR 2006 P H 160
# Kikabhai Samsuddin vs Collector Of Estate Duty, AIR 1969 Guj 326
# T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
# Mst. Noor Jahan Begum vs Muftkhar Dad Khan And Ors. , AIR 1970 All 170
# Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr
# HARI SINGH AND ORS. VS KALLU AND ORS. , AIR 1952 All 149
# Virendra Singh And Ors. vs Kashiram (Deceased By L.Rs.) ,AIR 2004 Raj 196
# MOMAN LAL VS ANANDI BAI & ORS,1971 AIR 2177 , Supreme Court of India
# Hutchegowda vs Smt. Jayamma And Anr. ,ILR 1996 KAR 17
# K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan
What are the important conditions of a valid gift Hindu Law ?
i) Relinquishment of one’s proprietory right in the property. Yet it should be without any consideration.
ii) Merely registering the gift deed does not afford to pass the title of the property.
iii) Creation of right of any person must be completed by acceptance.
iv) A gift is totally different from a surrender by a Hindu widow where she does not in fact or in law purport to transfer any interest in the property surrenders.
v) In addition to that in the case of Karunamoyee vs Maya Moyi, it was observed that the widow simply withdraws herself from the estate and the reversioner steps into the inheritance as a matter of law.”
vi) Yet, in the case of Narbada Bai vs Mahadeo, it was held that in case of transfer of the whole estate, the reversioner takes the same subject to the liability for her maintenance. It is thus vividly known that the reversioner is responsible for her debts, if she relinquishes the same.
vii) Where delivery of possession is enough to complete the transaction of a gift, is abrogated under section 123 of the Transfer of Property Act. However, the restrictions on power to enter into the transaction of gift under personal law exist without any change.
Recent Case-Law As To Scribe Of Gift Deed:
# Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April, 1999, Supreme Court of India;
# Giano vs Puran And Ors.,AIR 2006 P H 160;
# Ramjeet Mahto And Ors. vs Baban Mahto And Ors. ,2003 (4) JCR 268 Jhr;
# Rameshwar Singh And Ors. vs Harendra Singh And Ors. on 30 November, 2007,Patna High Court;
# Gurdial Singh And Another vs State Of Punjab And Others on 16 July, 2009 , Punjab-Haryana High Court;
# Mahant Rattangiri vs Chairman Indian Red Cross Society … on 14 December, 2009, Punjab-Haryana High Court;
# Smt. Takri Devi vs Smt. Rama Dogra And Ors., AIR 1984 HP 11;
# Smt. Chinnamma And Ors. vs The Devanga Sangha And Ors., AIR 1973 Kant 338
# Dhruba Sahu (Dead) And After Him … vs Paramananda Sahu., AIR 1983 Ori 24
# Most. Ram Dular Devi And Ors. vs Shri Satya Narayan Prasad And Ors., 2002 (3) BLJR 1757;
Gift under Mohammedan Law:
1. A hiba (oral gift) 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.
2. 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.
3. In view of section 129 of the Transfer of Property Act, it is clear that the rule of Mahommedan Law as to gifts is not affected under the said Act.
4. Generally, 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.
5. In the case of Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors. Reported in (2009) 6 SCC 160 held thus: -”15. We may notice the definition of gift as contained in various textbooks. In Mulla’s Principles of Mohammadan Law the “hiba” is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines of Muhammadan Law defined “gift” in the following terms: “A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan 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.”…”
6. In any gift by a Mohammedan, three essential requirements have to be complied with for a valid gift : (i) Declaration of the gift by the donor. (ii) Acceptance of the gift expressed or implied by or on behalf of the donee. (iii) Delivery of such possession of the subject of the gift by the donor to the donee. (Para 20). it was further observed that ” since the deed itself makes it clear that upto the date of the execution of this deed, the executant was in possession, and there can be no oral gift without possession. Therefore, this document cannot be constituted to be a memorandum of gift but it is a gift deed itself.” (para 21).
7. It was held in the case of ”Ashiq Ali And Ors. Vs Smt. Rasheeda Khatoon And Anr[9] ”, that ” in view of the provision under Section 129 of the Transfer of Property Act, the provision of Section 123 of the Transfer of Property Act shall not affect the validity of the gift under any rule of Mohammedan Law, so if an oral gift is there and the aforesaid three requirements are fulfilled, it cannot be ignored on the ground that a gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan.
8. Registration of a gift deed cannot cure a defect, as to condition of delivery of possession.
9. Mohammedan law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors.
10. The fundamental rule of Mohammedan law as to gifts is that “the donor should divest himself completely of all ownership and dominion over the subject of the gift.
11. There must 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.
12. As to delivery of possession is concerned, irrespective of actual or constructive, the ultimate test of the delivery of possession is to see whether the donor or donee reaps the benefit.
Revocation of gift deed under Mohammedan Law:
under the circumstances mentioned infra, A Mohammedan can revoke a gift even after delivery of possession:
i) When the gift is made by a husband to his wife or by a wife to her husband;
ii) when the donee is related to the donor within the prohibited degrees;
iii) when the gift is Sadaka (i.e. made to a charity or for any religious
purpose).
iv) when the donee is dead;
v) when the thing given has passed out of the donee’s possession
by sale, gift or otherwise;
vi) when the thing given is lost or destroyed;
vii) when the thing given has increased in value, whatever be the cause of the increase;
viii) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and
ix) 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.
Is Registration Mandatory ?
Under Section 123 of the Transfer of Property Act, a gift of property, which is not registered, is bad in law and cannot confer title to the donee. Gift Deed should be stamped and registered as required. Mere delivering possession without a written instrument cannot confer any title. A deed cannot be dispensed with even for a property of small value. 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 property is invalid without a registered instrument. A gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan.
Recent Case-Law As To Registration Of Gift Deed:
# Parbati vs Baijnath Pathak And Anr. 14 Ind Cas 61
# Vasudev Ramchandra Shelat vs Pranlal Jayanand Thakar And Ors ,1974 AIR 1728
# Firm Mukand Lal Veer Kumar & Anr vs Sri Purushottam Singh & OrS,1968 AIR 1182
# Udaya Naik vs Lokanath Naik And Ors. ,AIR 1954 Ori 195
# Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr. ,2005 (2) AWC 1342
# Smt. Sanjukta Ray vs Bimelendu Mohanty And Ors. , AIR 1997 Ori 131
# Chennupati Venkatasubbamma vs Nelluri Narayanaswami ,AIR 1954 Mad 215
# Bhagabat Basudev And Ors. vs Api Bewa And Ors. ,AIR 1974 Ori 180
# Vettikuti Naydamma (Died) And … vs Mupparaju Madhusudhana Rao And ,1996 (2) ALT 185
# Fateh Ali (Died) Per Lrs. And Ors. vs M.A. Aleem And Anr. ,2003 (6) ALD 611.
Recent Case-Lae Regarding ”Stamp Duty On Gift Deed”:
# Jwala Prasad vs State Of U.P. And Ors. , 2005 (2) AWC 2271
# Hemnath By His L.Rs. And Ors. vs Jalam Singh , 1989 (2) WLN 418
# Smt.Alamma Chacko vs The District Registrar (Audit) on 22 February, 2008 , Kerala High Court
# Ms Mayawati vs Dy Commissioner Of Income-Tax , (2008) 113 TTJ Delhi 178
# Ramchandra Vishwanath Ghaisas … vs The State Of Maharashtra ,AIR 1981 Bom 164
# Maha Vidyalaya (Degree College), … vs State Of U.P. & Others on 13 January, 2010, Allahabad High Court
# Hemnath vs Jalam Singh ,1 (1990) WLN Rev 590
# Dulal Chandra Chatterjee And Ors. vs Moni Mohan Mukherjee And Ors. ,2005 (2) CHN 563
# Gift-Tax Officer vs Rajmata Shanta Devi P. Gaekwad ,2001 76 ITD 299 Ahd
# Glitter Buildcon Pvt. Ltd. vs Mr. Sanjay Grover And Ors. , 2003 VIAD Delhi 217
Important Case-Lae As To ”Attestation Of Gift Deed”:
1. Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April, 1999, Supreme Court of India
2. T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
3. Balbhadar Singh vs Lakshmi Bai , AIR 1930 All 669
4. Hari Singh And Ors. vs Kallu And Ors. , AIR 1952 All 149
5. Bishwanath Raut And Ors. vs Babu Ram Ratan Singh And Ors. ,AIR 1957 Pat 485
6. Alapati Nagamma vs Alapati Venkataramayya And Ors. ,(1935) 68 MLJ 191
7. Balappa Tippanna vs Asangappa Mallappa And Anr. , AIR 1960 Kant 234
8. S. Sundaram And Anr. vs R. Damodaraswami And Anr. ,(1986) 1 MLJ 203
9. Har Prasad vs Mst. Ram Devi ,AIR 1964 All 64
10. K. Laxmanan vs Thekkayil Padmini & Ors. on 3 December, 2008 , Supreme Court of India
Revocation Of A Gift:
Section 126 of the Transfer of Property provides for conditions where a gift can be revoked. the following are essential ingredients for revocation of gift:
i) there must be an agreement between the donor and donee that the gift shall be suspended or revoked on the happening of a specified event;
ii) such event must be one which does not depend upon the will of the donor;
iii) the condition as to the suspend or revocation should be agreed to by the donee at the time of accepting the gift. And,
iv) there must exist a ground , except want or failure of consideration, on which a contract may be rescinded.
v) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the gift.
vi) Section 126 is controlled by sec. 10. As such, a clause in the gift deed completely prohibiting alienation is void in view of the provisions contained in sec. 10.
vii) 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.
Conclusion:
Despite the concept of expectation of reciprocity, a gift is known to be free. Any person who is the legal owner of a property can alone make a gift of his property. Basically, a gift is the transfer of something without consideration. In other words, it can be said that a voluntary transfer of a property in consideration of love and affection to person is known as ”GIFT”. It is thus vividly known that ” the chief characteristic of a gift is that it is a transfer without any consideration.”
-x-
# Black’s Law Dictionary defines ”GIFT”
“Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the donee.
# (1930) 57 IA 282
# See section 14 (1) and (2) of the The Hindu Succession Act (Act XXX OF 1956)
# Radha bai vs Gopal, AIR 1944 Bom 50
# AIR 1948 Cal. page 84
# Smt.Ajambi (Dead) By Lr. vs Roshanbi And Others on 30 August, 2010
# 2005 (2) AWC 1342, Ashiq Ali And Ors. Vs Smt. Rasheeda Khatoon And Anr.
# 2005 (2) AWC 1342,
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