Wednesday, 17 July 2019

Gift , meaning , definition , Essential Elements to constitute valid gift , Transfer of property act, 1882 Notes

         The Transfer of property act 1882
               [ OF GIFTS ( Section 122) ]



Synopsis

Definition of Gift
•Essentials elements of Gift 

       √Transfer of ownership
       √ Property must be existing
       √ Without any consideration
       √ Transfer must be done voluntarily
       √ Acceptance of gift by Donee.


Generally we know that Gift is a transfer of ownership without any consideration , and the transfer without any consideration is called as gratuitous transfer.

A gratuitous transfer takes place between two living person i.e ( Inter-vivos ) or transfer may take place only after the death of the transferor or donor . Therefore it's clear that Gift , may therefore, be either Inter vivos or , testamentary.


Gift, meaning, definition, essential to constitute a valid gift .

ESSENTIAL OF VALID GIFT


DEFINITION OF GIFT


Section 122 of the transfer of property act , 1882  defines gift as under :

"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 DONEE , AND ACCEPTED BY OR ON BEHALF OF THE DONEE .

According to the section 3 of the act IMMOVABLE PROPERTY includes -

(1)Land
(2) Benefits to arise out of land , and
(3) Things attached to the earth .

MOVABLE PROPERTY ACCORDING TO SECTION 3 OF THIS ACT .

A property which is not immovable is movable property. Act has not defined Movable property ,but it has given some examples :

Standing timber , growing crops and grass
•Government promissory notes
•Royalty or , copyright.
•Decree for the arrears of rent , etc.

There must be two living person i.e Donor and Donee .

DONOR: one who transfer the gift.
DONEE : One who accepts the gift .


      
  ESSENTIAL ELEMENTS OF VALID GIFT


The essential of  valid gift are Given below :

(1) There must be  transfer of ownership,
(2) The property must be existing property,
(3) Transfer is without consideration,
(4) Acceptance of gift by the Donee.


(1) Transfer of ownership

To constitute a valid gift there must be transfer of ownership from one party to another , without transfer of property there will be no Gift , Gift is the transfer of ownership, i.e absolute interest. 

During the Transfer the donor must intend to pass on all the rights and liabilities in respect of property to donee.

(2) Existing property

Another important essential to constitute a valid gift , is the property Which is the subject matter of gift , may either be movable or immovable , it may be tangible or intangible , property may be of any kind but two conditions are required :
(a) The subject matter of the gift must be in existence at the date of making of the gift .
(b)  The subject matter of the gift must be transferable within the meaning of section 5 of the act .

(3)  NO CONSIDERATION

An essential feature of a gift is that it must be gratuitous . Transfer of ownership must be without any consideration . Even a negligible property or , very small sum of money given by transferee in consideration of a transfer of ownership in a big property would make the transaction either a sale or exchange. Property transferred in consideration of love or affection is a transfer without consideration , hence a gift .

(4) VOLUNTARILY

The transfer of property must be done voluntarily, the donor must make the gift voluntarily .

Here "VOLUNTARILY" means that donor has made the gift by his own free will and free consent ,the consent of the donor must be free .
The consent of the donor is free when he has complete freedom of making the gift without any force , fraud , undue influence or coercion .Where the force of undue influence has been exercised on the donor , it cannot be said that the gift was made voluntarily.

(5) ACCEPTANCE OF GIFT

The last and most important essential to constitute a valid gift is the Acceptance of gift by the Donee . The Donee may refuse the gift , e.g., when it is non - beneficial property or , onerous gift . The Donee may refuse the offer of gift of such properties. Acceptance of the gift is therefore necessary.

Where , donee is Minor or insane , the gift must be accepted on his behalf by a competent person. .
Where , donee is a juristic person , the gift must be accepted by a competent authority representing such legal person . When gift is made to a deity , it may be accepted by its agent , e.g, the priest or manager of the temple.
Last paragraph of this section of transfer of property act 1882 , provides that if donee dies before acceptance , the gift is void .


      

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