Table of Contents
Table of Cases .............................................................................................................. 2 Introduction .................................................................................................................. 3 Gift: Definition ............................................................................................................. 5 Valid Gift: Essential Elements ...................................................................................... 7 Onerous Gift .................................................................................................................. 8 Universal Donee ............................................................................................................ 9 Onerous Gift And Universal Donee: Difference .......................................................... 10 Conclusion .................................................................................................................... 11 Bibliography ................................................................................................................. 12
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Table of Cases
Munni Devi vs. Chhoti,AIR 1983 All. 444. Ajmer singh vs. Atma Singh, AIR 1985 P& H 315.
Shri Kishan vs. Hari Narayan, AIR 2008 NOC 567 All.
Damodar RaviRajan vs. T.D.Rajappa,AIR 1992 Ker. 397.
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Introduction
"Gift" is the transfer of certain existing moveable or immoveable 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. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. As per definition of wikipedia “ A gift, in the law of property, is the voluntary transfer of property from one person (the donor or grantor) to another (the donee or grantee) without full valuable consideration. In order for a gift to be legally effective, the donor must have intended to give the gift to the donee ( donative intent ), and the gift must be delivered to and accepted by the donee. Gifts can be either:
lifetime gifts (inter vivos gift, donatio inter vivos) - a gift of a present or future interest made and delivered in the donor's lifetime; or deathbed gifts (gift causa mortis, donatio mortis causa) - a future gift made in expectation of the donor's imminent death. A gift causa mortis is not effective unless the donor dies of the impending peril that he or she had contemplated when making the gift, i.e. these gifts can only be made when the donor is in a terminal condition.
Gifts can also be:
outright - made free of any restrictions, such as being subject to a trust onerous - made with a burden or obligation imposed on the donee; or remunerative - made to compensate for services rendered
Thus overall the legal definition of Gift could be stated as “ A gift, in the law of property, is the voluntary transfer of property from one 3|Page
person (the donor or grantor) to another (the donee or grantee) without full valuable consideration”. Sec 122 of the Transfer of Property Act defines a gift which has the following essential requisites:i)There must be a transfer of ownership of a property; ii) The property should be of existing property; iii) The transfer should be voluntary; iv) It shall be without consideration; v) It can be of movable or immovable property; vi) The transfer should be accepted by the Donee from the Donor; vii) The acceptance of the transfer must be during the life time of the donor and he must be still capable of giving. In the event of the donor dying before acceptance, the gift is void.
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Gift: Definition
Gift has been defined in Sec. 122 of Transfer of Property Act, 1882 which states gift as is the transfer of certain existing moveable or immoveable 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. Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Thus 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 money1. It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those gifts that are gifts inter vivos or an absolute gift. Property under the above section can be both moveable or immoveable but however have to be tangible in nature. In order to constitute a valid gift, there must be an existing property as already earlier elaborated.
1
Black’s Law Dictionary.
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Valid Gift: Essentials
Going by the definition of gift provided by Sec. 122 of Transfer of Property Act,1882; one can clearly point out the essentials of a valid gift which are mentioned below as follows: (a)The absence of consideration: The most basic thing which makes a transfer of property from one person to other is the absence of consideration or we can say that “ Transfer of a property from one person to other and such transfer lacking consideration would amount to Gift. A gift deed was executed by a transfer by a mother to her daughter and daughter promised her to lok after and maintain the mother during her lifetime. It was held by the court that such gift was made on account of natural love and effection thus not in consideration of the promise made by daughter.2 (b) The Donor : The donor is the person who gives. Any person who is sui juris can make a gift of his property. A minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would therefore be void trustees cannot make a gift out of trust property unless authorized by the terms of the contract. On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of minor for the purpose of such property. (c) The Donee: The donee is the person who accepts the gift, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot bee enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift. The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A gift can be
2
Munni Devi vs. Chhoti,AIR 1983 All. 444.
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made to a child en ventre sa mere and could be accepted on its behalf. The donee must be an ascertainable person and be a donee under this section; nor can a gift be made to an unregistered society. (d) Voluntarily: Such transfer of property without any consideration to the donee must be done without the influence of other and moreover donor must have his consent behind such transfer. The burden of proof that the gift was made voluntarily with free consent of the donor,lies on the donee 3. (e) the transfer; and the acceptance: The transfer of such property wether movable or immovable will not be considered as a deed of gift untill and unless such transfer of property is not followed by the acceptance f the donee. The donee may refuse such gifts which are not benificial for him thus acceptance of donee is necessary. 4 (f) Existence of the property being transferred: The propertybeing transferred by donor must be in existence when transfer of ownership of such property occurs.5 In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be established by different circumstances such as donee taking a property or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given raises a presumption of acceptance.
3
Ajmer singh vs. Atma Singh, AIR 1985 P& H 315. Shri Kishan vs. Hari Narayan, AIR 2008 NOC 567 All. 5 Damodar RaviRajan vs. T.D.Rajappa,AIR 1992 Ker. 397. 4
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Onerous Gift: Definition
'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee. The principle behind this is that he who accepts the benefit of a transaction must also accept the burden of the same. This section, being an embodiment of a rule of equity, applies equally to Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is sufficient; there need not be any separate and express acceptance of the onerous condition also at the same time. The acceptance of the gift will carry with it the acceptance of the onerous condition also, even though at the time of the gift the donee was not aware of such condition, specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly maintenance to a certain person for life). A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound. Thus one can draw out two important features from Onerous gift i.e. 1. The onerous gift is subject to certain charges or obligations imposed on the donee by the donor ; 2.The donee is at liberty to accept any transfer of gift which is beneficial to him/her and refuse any gift which are onerous to the donee. In general if one can conclude it as When a gift is made subject to conditions or obligations to be fulfilled by the recipient, it is called an onerous gift. If donee desires to take benefit of the gift, he has to discharge the obligation attached to the gift. It is entirely up to the donee to accept or reject a gift but he can not accept only benefit and reject obligation attached to it. Onerous gift amongst other things involving separate transfers. Where gift of several things is made by two or more separate and unconnected or independent transfers to the same donee, the donee is at liberty to accept some and reject those which are onerous. 8|Page
Universal Donee: Definition
The essential condition to constitute a universal donee is that the gift must consist of the donor's whole property. If any portion of the donor's property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. This concept is embodied in section 128 of the Transfer of property Act. Sec. 128 of Transfer of Property states that “Subject to the provisions of section 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.” Thus in order to beome a universal donee it is necessary for the donor to transfer his whole property along with all the obligations embedded with it.
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Onerous Gift and Universal Donee: Difference
As provided in Sec. 127 and Sec.128 of Transfer of Property Act, as both two cover Onerous Gifts and Universal Donee respectively. Although difference between the two could be pointed out as follows:
Onerous gift could be only a small portion of the movable/immovable property of the donor whereas in case of Universal Donor Donor has to gift his whole property. If any portion of the donor's property, no matter whether it is moveable or immovable, is excluded from the operation of the gift or the endowment, the donee is not a universal donee. In case of onerous gift If donee desires to take benefit of the gift, he has to discharge the obligation attached to the gift. It is entirely up to the donee to accept or reject a gift but he can not accept only benefit and reject obligation attached to it while in case of Universal Donee the complete transfer of the donor’s whole property will eighter bring benifit to the donee or eighter loss to him.
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Conclusion
Giving gifts is a noble act. Receiving/accepting gifts gives both the donor and donee a pleasant feeling. But the non compliance of the essential requirements of Transfer of Property Act, Indian stamp Act and Registration Act may spoil the effectiveness or validity of the Gifts in the eyes of law. Both donor and donee must comply with the legal requirements to make the gift, a pleasant one. The conception of the term gift and subject matter of gift has been an age old and traditional issue which has developed into a distinct facet in property law. However talking of Onerous Gift and Universal Donee there is the burden of liabilities comes in the form of gift may be a part of the property of the owner but in case of Universal Donee donor’s gift consist of his whole property.
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References
The Transfer of Property Act, 13 th Edition (2012) – Dr. R.K. Sinha
www.indiankanoon.org/gift-valid-gift
www. wikipedia.org/onerous-gift/obligatios
www.lawman.org
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