Definition
Voluntary transfer of property without consideration.
Transfer of certain existing movable or immovable property made voluntarily and without consideration by a donor to a donee.
Statutory Definition
Transfer of Property Act, 1882, Section 122.
Etymology & Origin
From Old Norse 'gift' (a giving, a present — from 'gefa', to give; related to Old English 'giefan', to give). A 'gift' is literally a 'giving' — the unconditional giving of something to another, without expectation of return. The Latin equivalent 'donatio' (from 'donare', to give) gives 'donation' and 'donor' — a person who 'gives' rather than bargains.
Full Legal Analysis
A gift is defined in Section 122 of the Transfer of Property Act, 1882 as 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. Acceptance is essential — an unaccepted gift is not completed. If the donee dies before acceptance, the gift is void. The acceptance must occur during the donor's lifetime and while the donor is still capable of making a gift — acceptance after the donor's death does not complete the gift.
Key requirements for a valid gift: (1) Donor — must have capacity to contract (not a minor or person of unsound mind); the donor must be the owner of the property; (2) Donee — any person capable of holding property, including a minor (who can accept through their guardian); (3) Property — must be certain existing property (future property cannot be gifted — Section 124 TPA: gift of future property is void); (4) Voluntarily — no coercion, undue influence, or fraud; (5) Without consideration — the distinguishing feature; any exchange, however nominal, makes it a sale or exchange, not a gift; and (6) Acceptance — must be made during the donor's lifetime, actually or constructively.
The Supreme Court held that a gift deed, once validly executed and registered, and accepted by the donee, is complete and irrevocable — except on the specific grounds stated in Section 126 TPA (gifts made by husband and wife jointly to each other may be revoked by mutual agreement; a gift may be revoked if the donee survives the contingency on which revocation was reserved). The Court affirmed that an oral gift of immovable property is void; registration is mandatory under Section 123 TPA and cannot be cured by any subsequent act. Delivery of possession, in the absence of a registered deed, does not complete a gift of immovable property.
Onerous gift under Section 127 TPA: if a gift is made of several things, one of which is burdened by an obligation, the donee must either accept the gift together with the burden or reject it entirely. A donee cannot accept the benefit (the unencumbered property) while rejecting the burden (the encumbered property) — they take all or nothing. This prevents a donee from cherry-picking the favourable parts of a gift.
Gift under Muslim law (Hiba) follows different rules — a Hiba does not require registration; it requires only an offer (Ijab), acceptance (Qabul), and delivery of possession (Qabza). The registration requirement of TPA Section 123 does not apply to Hiba — a Muslim gift of immovable property is valid without registration if proper delivery is made. This is a significant exception to the general TPA registration requirement.
For advocates, gift disputes arise most commonly in: (1) validity challenges — was the gift made voluntarily, and was there proper acceptance?; (2) revocation claims — whether the donee has done something that gives rise to a right of revocation under Section 126; (3) family succession disputes — gifts to one heir challenged by others as affecting their inheritance rights; and (4) benami transactions — gifts that are actually sales or transfers in disguise, challenged under the Benami Transactions (Prohibition) Act.
This Term in Indian Statutes
Transfer of Property Act, 1882, 1882
"For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery."
Rajamma: registration mandatory — oral gift of immovable property void; acceptance during donor's lifetime; future property cannot be gifted Section 124; onerous gift Section 127; Hiba no registration
