Family Law Bullet Points III

Family Law: Bullet Points III

Introduction The Transfer of Property Act, 1882 deals with the transfer of property by means of a gift. These provisions do not apply to uslims who ma!e transfers which are governed by uslim "aw #ifts can be made for any purpose, usually love or affection • Thou Though gh the the purp purpos osee behi behind nd a gift gift is imma immater terial ial if made made to defe defeat at the the •  provisions of law then it is invalid and voidable at the option option of the creditors $oncept •

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$oncept of a gift is it to transfer e%isting moveable or immovable property voluntarily and without consideration from the donor to the donee.

&e'uirements of a valid gift • • •

Parties( )onor and )onee *ub+ect atter  ssential ssential lements( lements( )eclarati )eclaration on by the donor donor,, Acceptance Acceptance by the the )onee )onee and and immediate delivery of possession

The )onor •

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Any uslim uslim(( a+or, a+or, *ound *ound ind, $ompetent $ompetent to to $ontract $ontract can can ma!e ma!e a valid valid gift Age( 18 in ordinary cases and 21 in case a guardian has been appointed *e%( ven ven a female can ma!e ma!e a gift, irrespective of marital status. -here a gift is made by a Pardanashin woman then the burden of the gift is on the donee to  prove that she had full !nowledge of her actions and understood the implications of it. wner( The donor must be the valid owner of the property Anyone can ma!e a valid gift irrespective with the ob+ective to defraud his creditors.

The )onee • • • • • •

$ompetency to contract is not an essential re'uirement A donee can be a minor and of unsound mind ust be capable of holding property i.e. +uristic person Any se%, age, religion, even a relative or a stranger  A gift to an unborn person is void, person pers on must be in e%istence A gift can be made to a child in the womb provided the child is born within / months from ma!ing the gift

*ub+ect atter of the #ift •

Property must be capable of being owned

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Arman Sood 3  Year BA.LLB Section-A

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Property must be in e%istence, not something that will come into e%istence later. If it is property, which will come into e%istence later then the gift made is void. The reason for it being void is that the delivery of possession has to be immediate and therefore it is void. $orpus and 0sufruct Page 334 'uity of &edemption Page 3/4

ssential Ingredients of 5alid #ift • • •

)eclaration by the )onor I+ab4 Acceptance by the )onee 6ubool4 )elivery of Possession 6ab7a4

)eclaration( • • •

5oluntary, ree $onsent )eclaration should not be tainted with a fraudulent motive ade in presence of witnesses

Acceptance( • • • •

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ust be accepted by the donee Acceptance can be made on behalf of donee by a guardian -hen father is alive he alone is the legal guardian rder of guardians( ather, %ecutor by will, paternal grandfather has power  to e%ecute by will4 There e%ist natural as well as testamentary guardians &ela%ation of rules in case mother is given property as guardian or stranger in case of an orphan In case a minor girl is married the husband can accept the gift on her behalf 

)elivery of Possession • •

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0nder TPA there is no importance placed on immediate delivery of possession 0nder uslim "aw however the delivery of possession is invalid if not accompanied by immediate delivery of possession The owner must completely divest himself from ownership and must give full control of property to the donee. )onor must vacate entire property and relin'uish full control of the property and thus put the donee in possession of  the property.

Exceptions-here gift is made by husband to the wife and vice(versa ather to minor child -here the donor and donee reside in the same place of gift

rd

Arman Sood 3  Year BA.LLB Section-A

The SC laid down 6 Criteria-

)onor should be sane and ma+or  The thing gifted must be in e%istence at the time of transfer  If divisible must be divided and made distinct Things gifted must not be combined with things not to be gifted. The thing gifted must be given to the donee himself or his representatives ormalities for Affecting a 5alid #ift • •

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ral gift is completely valid as long as immediate possession transfer e%ists ral, writing or registered( but has to fulfill the basic re'uirements discussed earlier  ral gift has to be strictly proved in case of dispute

usha • • •

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usha is an Arabic word meaning confusion It refers to an undivided share in the property Property may be either an independent unit or a part of a unit that needs to be ascertained or specified -here incapable of division( -here the property is not capable of division the donor by some means has to ma!e it clear as to what needs to be put in the  possession of the donee. -here capable of division( -here capable of division it must be divided and then put in possession of the donee 0nder *hia "aw( The gift of an undivided property capable of division is valid 0nder *unni "aw( The gift of usha in a property capable of division is valid from the date of its inception in certain specific situations.

ote!here the "i#ted property is capa$le o# di%ision $ut is not di%ided and is "i#ted then it is %alid under Shia Law $ut merely in%alid under Sunni Law& 'a(in" su$se)uent di%ision o# property can %alidate it& Contin"ent *i#ts are in%alid

$onditional #ifts Page 924 #ifts with %change • •

#ifts with e%change are referred to as :iba(bil(Iwa7 ;asic essentials( bona fide and voluntary intention on the part of the donor and  payment of consideration by the donee

rd

Arman Sood 3  Year BA.LLB Section-A

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Payment of consideration is one of the most important aspects of #ifts with e%change It maybe in the form of performance of an obligation in the form of return of a favor  It is treated as a sale of property and all condition precedents of a sale have to  be made out here $onsideration doesn
&evocation of #ift •

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rdinarily till the gift is complete it is revocable in other words till all the essentials of a gift are complete it can be revo!ed. -here the possession is delivered the gift becomes complete but because it is a purely voluntary transaction it can be revo!ed even after its completion. &evocation can be with the consent of the donee or by a decree of the court &ight of revocation can be e%ercised only by the donor and not his heirs

#ift completely irrevocable when( • • • • •

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ither donor or donee is dead -here they are husband and wife or vice(versa -here they are within prohibited degrees of relationship -here the donor has received a return for the gift -here the sub+ect matter of the gift has been lost, destroyed or has lost its identity -here it has substantially increased value

A decree of the court is necessary for valid revocation. 0nder *hia "aw a mere declaration is valid. nly a person whose rights are affected by a gift can challenge its validity.

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Arman Sood 3  Year BA.LLB Section-A