The word 'Gift' per se is a magical word. Whenever a person thinks of a gift automatically, a smile builds on the face of that person, but what is behind the curtains? Is there any legality to it? Can anyone present anything to anyone? The answer is
Gift is one of the forms of conveyancing, such transfer of any existing property from "Donor" (giver)to "Donee"(to whom it is given), voluntarily out of free will without quid pro quo or consideration, the most essential element of gift deed is that it shall be accepted by or on behalf of donee. If the donee dies before accepting the gift, such deed becomes void. The gift or such subject matter immovable nature must be registered compulsorily. The concept of gift is categorically encompassed in the Transfer of Property Act, 1882 but it is too be taken into notice that Mohammadean Law’s concept of gift is slightly different. In Muslim law a gift is called to be a contract because it is considered as transfer of property or right by one person to another which includes Hiba (an immediate and unconditional transfer) and Ariat (limited grant of right regarding its usage).
Gift is defined in Section. 122 of Transfer of Property Act
"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.
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.
Gift can transferred in numerous ways; firstly, it is transferred from the owner of that property to the desired donee. It can be done by sale, will or gift but the common method used to transfer the property to the kin is by executing the gift deed in favour of that person.
As mentioned above, registration of such a gift/gift deed is of paramount importance in execution of a valid gift transfer, provided in Section 123 of Transfer of Property Act; the process is given below as:
- The pre- registration stage of the transfer of gift is to draft the deed as prescribed by the established law; also the predetermined conditions of Donor and Donee, and shall be read thoroughly. It is a contract someone is giving and the other one takes it, which must be made voluntarily and with free will.
- After the legal formalities are achieved the donee must accept the gift, during the lifetime of the donor, if the donee does not accept the gift, such deed is rendered invalid.
- If and when the Donee accepts the gift, the next stage is that; both the Donor and Donee shall go to the sub-registrar office nearest to the immovable property to be 'Gifted', and shall be duly signed in the presence of 2 witnesses making the transfer of title as valid.
- The deed is registered as per the provisions of Registration Act, 1908:
- The value of the property is evaluated properly by the valuation expert and also it is seen that whether the Donor is the true owner of the property and is in capacity to transfer the gift.
- Stamp duty is to be paid on the gift deed, which may differ from state to state, and sometimes charges may differ from men to that of women.
- The registration charges are to be paid and at last, the deed is attested and such payment as prescribed by respective states may be paid by Demand Draft (DD), Cheques or even Cash.
*Note: The reason why the registration of deed is made compulsory is that, if the fate of such deed or property lands up in court, the registration may prove to be powerful evidence, also transfer of an immovable property under Chapter 17 (a) of The Registration Act, 1908 the Gift Deed instrument is made compulsory. Whereas, the registration of movable property is not made mandatory or express in any existing Acts or procedures
Essentials Of "Gift"
- Transfer of Ownership, all the rights of the Donor of the subjected property are vested in Donee along with a declaration, that clearly shows the intention of the Donor’s to wish to make a gift to the Donee. Under Muslim Law, transfer in writing is not made mandatory.
- There can be no gift of future property; so to say the property movable or immovable in nature must be in existence at the time of transfer.
- There should be no consideration for the transfer of such gift.
- The transfer of gift must be purely voluntary and not by use of force.
- The acceptance of the gift is mandatory to give effect to such transfer or gift deed,
- An unregistered immovable gift is not considerable in the eyes of law, registration is mandatory.
- The possession and delivery of the gift is highly desirable and must be taken care of. The delivery either be constructive, when property not actually given but certain acts may amount to its possession, but not in physical terms actually, and still circumstantially, the gift is considered as delivered and on the other hand, actual delivery when property is physically delivered.
Other Miscellaneous Heads Of Gift Deed
- A minor can be a beneficiary/Donee but cannot be a Donor of the gift, once the minor becomes major, he may accept or return the gift.
- A gift not registered and made orally is invalid.
- Under Muslim Law, the concept of gift flows like a contract, from offer to acceptance and then the transfer is completed, when the gift is delivered to the Donee.
- According to Hindu Law, earlier to these acts like The Hindu Transfers and Bequest Act, 1914,Hindu Disposition of Property Act, 1916, The Hindu Transfer and Bequest Act , 1921 the transfer of gift to a non-existent and non-juristic person was invalid.
- In Hindu Law, there is no mandate as to follow a set of legal structure.
- The property should be tangible, transferable, movable or immovable and must be existent.
- When a gift deed of the immovable property being the subject matter, is executed in favour of the Donee or the recipient, the Donor cannot exercise any right to revoke or cancel the deed, afterwards and according to Section.126 of Transfer of Property Act, a gift may stand revoked or suspended if for example:
A gives a field to B, reserving to himself, with B's assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A's lifetime. A may take back the field.
Hence, Gift is not merely a day-to-day practise but beyond it, it is fixed by legislations and for valid results is backed by law. A gift in short is made to a recipient who accepts it by the legal owner of the property who is in right capacity to transfer the title.