Definition of gifts under TOPA

Section 122 of the Trnasfer of Property Act defines a ‘gift’ as any transfer of a movable or immovable property, which is made voluntarily by one person, often known as or called the donor and the one on the receiving end being the donee. Here, an essential for a transfer to be a gift is that it should be made without any consideration whatsoever.

Essentials of a gift

1.      Acceptance

One of the most necessary aspects of a gift is that it should be accepted by the donee. The Kerela Hiigh Court in Janki Amma v K Gopalakurup and Ors.[1] stated that the acceptance of the gift should be either express or implied and it should be irrespective of the conduct of the parties. Here, the court stated that every case should look into this question or issue based on the facts and then decide accordingly. Lastly, the transfer of a gift is complete if accepted only during the lifetime of the donor i.e wills or inheritance are not considered as gifts.

2.      Voluntary act

As the name suggests, a gift should be given voluntarily by the donor to the done, out of love and affection. The simplest example can be that of a gift of a bike given by a father to his daughter on her birthday. This is out of love and affection for his daughter. Thus, if any gift is given out of coercion or undue influence, it cannot be considered a gift, since it fails the essentials of a voluntary gift. A pardanashin lady is someone, who, due to the culture of her society is required to remain away from the public and is not exposed to the same opportunities or exposure as opposed to a normal human and hence is in a more vulnerable position with regards to commercial activities. Keeping in mind that many people can misuse her and influence her for their own good, the law scrutinizes the case more, when a pardanashin woman is involved. Thus, it must be proven beyond doubt by the done that a ‘gift’ made by a pardanashin donor was without any undue influence of any kind. Not just this, in Pratima Chaudhary v Kalpana Mukherjee[2], it was held that in case of a fiduciary relationship, burden of proof rests on dominating party.

3.      Donor and Donee

As it is clear from the name, a donor is the person who transfer the gift and the done is the person on the receiving end. Any person who is capable of transfer of gifts can do so. Thus, a minor, is not capable of giving gifts due to a lack of capacity. Thus, a gift made by a minor is void.[3] Now, the guardian of a minor may execute the gift on his/her behalf but only with the express permission of the court. If this is not done, the gift is rendered void.[4] However, a done can be a minor because in this case, he is a beneficiary. With regards to a done, it must be duly noted that a done has to be a living person and thus, a gift made to a religious society cannot be considered as gift under the definition of section 122. In a famous case,it was held that the transfer of property for the creation of a dharmashala to a religious institution is not a gift under Tansfer of Property Act since here, the done is not a living entity.[5]

4.      No Consideration

A gift is supposed to be considered as one, since it is made out of love and affection to a person. Thus, a gift in return for something is no gift at all. It was stated in a case that even if the transfer is made for a less amount of money as compared to the actual value, it would still not be a gift since there is the consideration of money involved in it[6]. Although love and affection are the two emotions or driving forces behind a transfer of property they will not be considerations under the law.[7]

Oral gifts

According to Section 123 of the Act, for transfer of immovable property as a gift, it mustbe registered by thedonor or on the donor’s behalf along with two witnesses on his side. A movable property on the other hand, can be made by either through registration or delivery. Thus, as regards to an immovable property, a gift cannot be transferred orally. The Muslim law, however, permits the transfers of immovable property as gifts orally. In such a case, there is another question that arises; whether a donor can revoke his offer before the property has been registered if the done has accepted the instrument of gift. It was held in Atmaram Sakharam v Janardhan[8] that the donor cannot revoke his offer even prior to the registration if the gift instrument of immovable property has been accepted by the done.

Mohemeddan law

Section 129 of the Act clearly states that it shall not affect any rule of the Muhammadan law. Under Muslim law, a Hiba is a gift and has been meticulously defined as an immediate transfer accepted by or on behalf of a person, specifically without any exchange whatsoever. Under Muslim law, the essential features are the declaration of a gift by the donor, the donee’s acceptance of said gift and lastly, the delivery of possession of the subject matter of the gift to the very done himself.

The declaration of a gift must also entail a true intention of actually providing the said person  with a gift, otherside it shall be declared void.[9] With regards to acceptance, without an acceptance a gift is invalid. However, in case of a minor the gift need not be accepted if the gift is made by a parent or guardian. As opposed to the Transfer of Property Act, delivery, either actual or constructive is necessary in Muslim law. Here, constructive can mean that say tere are two donees in a particular transfer. The possession of property by one of them could entail as a constructive delivery to both.

With regards to the transfer of property act and the Muslim law, tere are certain noticeable differences. For one, revocation under the act is not possible after transfer of the gift, and discussed above even prior registration in some cases. However, Muslim law allows revocation even after transfer through the consent of the done and intervention of the court. Also, as discussed before transfer cannot be made to a non living person in the Act but Muslim law allows and infact has a provision for gits to religious institutions like mosques.

Controversies

In the past, there have been a lot of controversies with regard to the separate provision for Muslim laws under Section 129 of the Act. It has been considered as ultra vires of the Indian constitution by few jurists and some still advocate for its necessity. However, in a particular case, it was held that the separate provision for Muslim law as regards to gifts was a reasonable classification and not against Article 14 which guarantees equality under law. The court stated that Article 14 allows reasonable classification and since the customs and practices of Muslims are different than others, it is reasonable to have a separate provision for Muslims.[10] However, some judgments have a dissenting opinion on the issue. In a case[11], Justice Krishna Iyer stated that some gifts are of secular nature and others are of religious. Thus, those gifts of secular nature must be under the Transfer of Property Act, irrespective of religion and those of religious nature, say to a religious institution to the Muslim laws. However, in today’s world it is very difficult to create a distinction between the two types of gifts and thus, this judgment has faced a lot of criticism. The established position of law is that the section 129, which separates the law from affecting Muslim law is in fact valid and not ultra vires the Article 14 of the Indian Constitution.

Conclusion

The Indian law has seen a lot of changes with time. The interpretation of Section 129 if the Transfer of Property Act is a very essential one, since there is a question of equality and also a religious colour brought into this question. It is my opinion that if the courts can clearly define what a secular gift is and what a religious gift is, it shall be easier to understand Justice Iyer’s point of view, since ideally everyone should be under the same law irrespective of religion, with some reasonable exceptions. However, with the analysis of both laws, it is clear that they both have some similarities and some disparities. Thus, it can be observed that the settled law should remain as it is, since it entails a reasonable classification keeping in mind the customs and traditions of Muslims with regards to gifts.

 BY-

Samruddhi Chiplunkar

Samruddhi Chiplunkar is a BA LLB(Hons.) student from NALSAR University of Law, Hyderabad. She has an interest in International Law and Constitutional Law, especially in matters related to Fundamental Rights.