Section 122 to Section 129 contained in Chapter VII of Transfer of Property Act, 1882 deals with gifts.

A 'gift' is the transfer of ownership in an existing movable or immovable property made voluntarily and without consideration (Sec. 122). The essence of a gift is voluntary and gratuitous transfer of ownership in a property in favour of another person. "Gifts are always gratuitous, grants are upon some consideration or equivalent".

A gift may either be a gift inter vivos (between living persons), or gift testamentary (ie. 'will', operative only after the death of the transferor or testator). The Transfer of Property Act deals with the former only

The following gifts do not come within the purview of this Act:

• Testamentary gift that is a gift by operation of law.
• A gift made in apprehension of death

Essential Elements of a Valid Gift

1. Transfer of Ownership
   • A gift involves transfer of ownership as in this the whole interest of the person in the property is transferred in favour of another person.
   • The person transferring the interest is known as the 'donor' and the person to whom the interest is transferred is known as the 'donee'.
   • The donor must be competent to contract; he must be major as well as of sound mind.
   • The donee does not need to be competent to contract; a minor or a person of unsound mind though disqualified from entering into a contract is capable of receiving the property.
2. Existing Property
   • As per Section 124 of this Act, the gifted property must be in existence at the time of making the gift, although its conveyance may take place either in future or in present.
   • Both immovable and movable property may be gifted.
   • A gift of a future property is void as to the future property.
   • An actionable claim is an existing property, and it can be gifted.
3. Transfer Without Consideration
   • An essential feature of a gift is that it must be gratuitous.
   • Ownership must be transferred without any consideration.
   • The word 'consideration' has been defined in Section 2(d) of the Indian Contract Act, 1872 (ICA) and is used in the same sense under the Transfer of Property Act, 1882.
4. Voluntary Transfer with Free Consent
   • The gift must be made by the donor voluntarily, that is with his free will and consent.
   • When the consent of the donor is not free that is the consent has been given due to coercion or undue influence, then the gift will not be a valid gift.
   • Section 15 and 16 of the Indian Contract Act, 1872 defines coercion and undue influence.
5. Acceptance of the gift
   • According to Sec. 122 "an acceptance of gift 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, the donor and the donee must both be living persons.
   • The representatives of a donee deceased at the date of the gift cannot take for him.
   • If the gift has been accepted but the donor dies before the deed is registered, the transfer (registration) may be completed after the donor's death.

The acceptance by done may be express or implied.

Types of gifts

Onerous gifts: Section 127 deals with onerous gifts. These are those kinds of gifts which involves burden or obligation attached to the property. It is based on the principle "qui senti commode sentire debetet onus' which means that the person who receives an advantage must bear the burden.6 To constitute an onerous gift there must be a single transfer of several properties, one of which is burdened with certain obligations and others not, then the transferee has to abide it to receive all the properties. In simple words, he cannot relieve himself from the burden and take the rest of the properties.

Universal gift

A universal gift is one in which the donor's whole property is given to the donee, and who consequéfitly becomes 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 in the gift.

If any portion (barring insignificant part, or, life-interest in a part of property) of a donor's property, no matter whether movable or immovable, is excluded from the operation of the gift, the donee is not universal donee. Thus, where only all the immovable properties are transferred and the donor continues to own movables, the donee cannot be called a universal donce. Similar is the case where the donor had not included in the gift-deed the equity of redemption in respect of the property mortgaged by him.

Although the donee is liable personally for all the debts due by the donor at the time of the gift, the liability is limited to the extent of the property received by him under the gift and not property applied by him towards the payment of the debt.

Void Gift

The following gifts are included in the category of void gifts:

• Gifts depending on unlawful purposes.
• Gifts made upon a condition, the fulfillment of which is impossible or forbidden by law.
• Gifts by a person incompetent to contract.
• Where the donee of the gift dies before acceptance.
• A gift comprising of both the existing and future property is void as to the future property.
   

Suspension or Revocation of Gift

A gift cannot be revoked or suspended at the pleasure of the donor, for a transfer by a gift is complete and binding on the parties when once completed, as any other form of transfer. A gift once made is irrevocable, except in the following two cases, as laid down in Sec. 126.

• Revocation by an agreement
• Revocation on the ground of undue influence, fraud, etc.
   

Revocation by agreement

Where the donor and the donee mutually agree that the gift shall be suspended or revoked upon the happening of an event not dependent on the will of the donor, it is called a gift subject to a condition laid down by mutual agreement. It must consist of the following essentials:

• The condition must be expressly laid down
• The condition must be a part of the same transaction, it may be laid down either in the gift-deed itself or in a separate document being a part of the same transaction.
• The condition upon which a gift is to be revoked must not depend solely on the will of the donor.
• Such condition must be valid under the provisions of law given for conditional transfers.
• For ex- a condition totally prohibiting the alienation of a property is void under Section 10 of the Transfer of Property Act.
• The condition must be mutually agreed upon by the donor and the donee.
• Gift revocable at the will of the donor is void even if such condition is mutually agreed upon.
   

Revocation on the ground of fraud, undue influence etc.

A gift is a voluntary and free transfer of ownership. If it can be proven that the gift wasn't made willingly, meaning the donor's consent was not freely given, the gift must be revoked. Every gift involves an explicit or implicit contract, where the donor makes an offer and the donee accepts it. If the preceding contract is rescinded or revoked, the subsequent transfer (gift) under it is nullified. Section 126 allows the revocation of a gift on the same grounds that would apply to the rescission of a contract. According to Section 19 of the Indian Contract Act, if consent to an agreement is obtained through coercion, undue influence, fraud or misrepresentation, the agreement is a voidable contract at the option of the party whose consent was manipulated. Therefore, if the gift is not made voluntarily due to any of these factors, the donor has the right to revoke the gift. It's important to note that this section addresses revocation, which is the annulment or rejection of a gift. If the donor's consent was obtained through coercion, undue influence, fraud or misrepresentation, the donor can choose to repudiate or revoke the gift. If the donor doesn't exercise this option, the gift remains unaffected. The right to revoke the gift under Transfer of Property Act on these grounds lies solely with the donor and cannot be assigned to any other person. However, after the donor's death, legal heirs may seek revocation based on these grounds. The time limit for revoking gifts on the grounds of fraud, coercion, misrepresentation or undue influence is three years from the date when the plaintiff (donor) becomes aware of these facts. The right to revoke the gift on these grounds is forfeited if the donor explicitly ratifies the gift, either through express approval or by conduct. Cases:

• Kartari vs Kewal Krishan, 1972
• Subhash vs Ganga Prasad AIR 1967
• Rajamma vs Biswajith [2002]
• RN Dawar vs Ganga Saran Dhama, AIR 1993

Conclusion:
Under the Transfer of Property Act (TPA), a gift is a voluntary and gratuitous transfer of ownership from one person to another. It requires acceptance by the donee during the lifetime of the donor. Gifts can be movable or immovable property, but the essential condition is that they must be made without consideration. While gifts are irrevocable once accepted, certain conditions may allow for revocation, such as fraud, coercion, or undue influence. The TPA provides a clear framework to ensure that gifts are legally enforceable, protecting both the donor and the donee from future disputes.

Written By: Harsh Jain, B.A.L.L.B. second year student have endeavored to shed light on critical issues. I hope this analysis sparks further discussion and inspires action among peers, legal professionals, and policymakers. It is only through collective efforts that we can strive for a more efficient and just judicial system. Thank you for engaging with this important topic.