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Introduction

According to the Act, 'transfer of property' means an act by which a person conveys
property to one or more persons, or himself and one or more other persons. The act of
transfer may be done in the present or for the future. The person may include an
individual, company or association or body of individuals, and any kind of property
may be transferred, including the transfer of immovable property.

Interpretation of Property
Property is broadly classified into the following categories:
1. Immovable Property (excluding standing timber, growing crops, and grass)
2. Movable Property
The Interpretation of the Act, says "Immovable property does not includes standing
timber, growing crops or grass". Section 3(26), The General Clauses Act, 1897,
defines, " immovable property" shall include land, benefits to arise out of land, and
things attached to the earth, or permanently fastened to anything attached to the earth.
Also,The Registration Act,1908, 2(6)
"immovable property" includes land, buildings, hereditary allowances, rights to
ways, lights, ferries, fisheries or any other benefit to arise out of land, and things
attached to the earth or permanently fastened to anything which is attached to the
earth, but not standing timber, growing crops nor grass.
A transfer of property passes forthwith to the transferee all the interest which the
transferor is then capable of passing in the property, unless a different intention is
expressed or implied.
According to Section 43 of the Transfer of Property Act 1882, in case a person either
fraudulently or erroneously represents that he is authorised to transfer certain
immovable property and does some acts to transfer such property for consideration,
then such a transfer will continue to operate in future. It will operate on any interest
which the transferor may acquire in such property .
This will be at the option of the transferee and can be done during the time during
which the contract of transfer exists. As per this rule, the rights of bona fide
transferee, who has no notice of the earlier transfer or of the option, are protected.
This rule embodies a rule of estoppel i.e. a person who makes a representation cannot
later on go against it.

Every person, who is competent to contract, is competent to transfer property, which


can be transferred in whole or in part. He should be entitled to the transferable
property, or authorised to dispose off transferable property which is not his own. The
right may be either absolute or conditional, and the property may be movable or
immovable, present or future. Such a transfer can be made orally, unless a transfer in
writing is specifically required under any law.
According to Section 6 of the Transfer of Property Act, property of any kind may be
transferred. The person insisting non-transferability must prove the existence of some
law or custom which restricts the right of transfer. Unless there is some legal
restriction preventing the transfer, the owner of the property may transfer it.
However, in some cases there may be transfer of property by unauthorised person
who subsequently acquires interest in such property.
In case the property is transferred subject to the condition which absolutely restrains
the transferee from parting with or disposing of his interest in the property, the
condition is void. The only exception is in the case of a lease where the condition is
for the benefit of the lessor or those claiming under him. Generally, only the person
having interest in the property is authorised to transfer his interest in the property and
can pass on the proper title to any other person .
The rights of the transferees will not be adversely affected, provided: they acted in
good faith; the property was acquired for consideration ; and the transferees had
acted without notice of the defect in title of the transferor.
It should be noted that these conditions must be satisfied :
There must be a representation by the transferor that he has authority to transfer the
immovable property. The representation should be either fraudulent or erroneous.
The transferee must act on the representation in good faith. The transfer should be
done for a consideration. The transferor should subsequently acquire some interest in
the property he had agreed to transfer. The transferee may have the option to acquire
the interest which the transferor subsequently acquires

What may be transferred


Property of any kind may be transferred, except as otherwise provided by this Act or
by any other law for the time being in force.

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation


obtaining a legacy on the death of a kinsman, or any other mere possibility of a like
nature, cannot be transferred.
(b) A mere right of re-entry for breach of a condition subsequent cannot be
transferred to anyone except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage.
(d) An interest in property restricted in its enjoyment to the owner personally cannot
be transferred by him.
(d) A right to future maintenance, in whatsoever manner arising, secured or
determined, cannot be transferred.
(e) A mere right to sue cannot be transferred.
(f) A public office cannot be transferred, nor can the salary of a public officer,
whether before or after it has become payable.
(g) Stipends allowed to military, naval, air-force and civil pensioners of the
government and political pensions cannot be transferred.
Operation of transfer:
Unless a different intention is expressed or necessarily implied, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then capable of passing in the
property and in the legal incidents thereof. Such incidents include, where the property is land, the
easements annexed thereto, the rents and profit thereof accruing after the transfer, and all things
attached to the earth; and, where the property is machinery attached to the earth, the movable parts
thereof; and, where the property is a house, the easements annexed thereto, the rent thereof
accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things
provided for permanent use therewith; and, where the property is a debt or other actionable claim, the
securities therefor (except where they are also for other debts or claims not transferred to the
transferee), but not arrears of interest accrued before the transfer; and, where the property is money
or other property yielding income, the interest or income thereof accruing after the transfer takes
effect.

(h) No transfer can be made (1) insofar as it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the meaning of
section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally
disqualified to be transferee.
(i) Nothing in this section shall be deemed to authorise a tenant having an
untransferable right of occupancy, the farmer of an estate in respect of which default

has been made in paying revenue, or the lessee of an estate, under the management of
a Court of Wards, to assign his interest as such tenant, farmer or lessee.

Persons competent to transfer


Every person competent to contract and entitled to transferable property, or
authorised to dispose of transferable property not his own, is competent to transfer
such property either wholly or in part, and either absolutely or conditionally, in the
circumstances, to the extent and in the manner, allowed and prescribed by any law
for the time being in force.

Oral transfer
A transfer of property may be made without writing in every case in which a writing
is not expressly required by law.

Gift
Gift is defined by section 122 of the Transfer of Property Act ."Gift" is the transfer
of certain existing moveable or immoveable 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. 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.

Subject Of Gift
The subject matter of the gift must be certain existing movable or immovable
property. It may be land, goods, or actionable claims. It must be transferable under s
6. But it cannot be future property. A gift of a right of management is valid; but a gift
of future revenue of a village is invalid. These cases were decided under Hindu and
Mohammedan law respectively but they illustrate the principle. In a Calcutta case, it
was said that the release of a debt is not a gift, as a gift must be of tangible property.
It is submitted that the release of a debt is not a gift as it does not involve a transfer
of property but is merely a renunciation of a right of action. It is quite clear that an
actionable claim such as a policy of insurance may be the subject of a gift It is
submitted that in a deed of gift the meaning of the word 'money' should not be
restricted by any hard and fast rule but should be interpreted having regard to the
context properly construed in the light of all the relevant facts. Therefore in order to

constitute a valid gift, there must be an existing property. In Mohammedan law any
property or right which has some legal value may be the subject of a gift.
Conditions For Valid Gift Under Section 122 Of The Transfer of Property
There was a divergence of view between the two schools of Hindu law as to the
necessity of acceptance of the gift by the donee, Dayabhaga holding that it was not
necessary but Mistakshara holding the contrary. This section has modified the
indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the
property in him subject to his right to repudiate the gift, even though he be unaware
of the transfer And this is so even though the gift be onerous. The mutation entries of
the property alleged to be gifted does not conveyor extinguish any title and those
entries are relevant only for the purpose of collection of land revenue.
It is required to be a voluntary transfer of property to another made gratuitously and
without consideration. This section applies to those gifts that are gifts inter vivos or
an absolute gift. Property under the above section can be both moveable or
immoveable but however have to be tangible in nature. In order to constitute a valid
gift, there must be an existing property as already earlier elaborated.
Voluntarily - In this section the word 'voluntarily' bears its ordinary popular
meaning. It denoting the exercise of the unfettered free will, and not its technical
meaning of 'without consideration'. When a gift is made, it must satisfactorily appear
that the donor knew what he was doing and understood the contents of the instrument
and its effect, and also that undue influence or pressure was not exercised upon clear
intention to make an out-and-out gift, but the intention has failed for want of transfer
or any other cause, the courts will not convert what was meant to be an out-and-out
gift into a trust, and the donor will not be deemed a trustee of the property for the
intended donee. The gift will fail. Also where the husband deposited certain
ornaments with a bank for safe custody in the joint names of himself and his wife,
with direction to be delivered to be either or survivor, it did not amount to a gift, as
the husband retained dominion over the property. Where a person keeps money to
fixed deposit in the name of his niece, brought up and given in marriage by him,
there is an inference of gift in favour of the niece.
Where the motive behind the deed of gift was unequivocal to give the transferee a
title which would act as a safeguard against any claim for pre-emption, the
transaction for that reason cannot be called a sale. Similarly where a person settles an
annuity upon his alleged wife, the settlement cannot be construed to be a contract for
consideration of love and affection, but is a gift pure and simple.
Donative intention (motive) and considerationA gift is a transfer. But it does not contain any element of consideration. Complete
absence of monetary consideration is the main, hallmark, which distinguishes a gift
from a grant or any other transactions for valuable or adequate consideration. Where
there is any equivalent of benefit measured in terms of money in respect of a gift, the
transaction ceases to be a gift. Love, affection, spiritual benefit and many other
factors may enter in the intention of the donor to make a gift but these financial

considerations cannot be called or held to be legal considerations as understood by


law. Legal consideration is one recognised or permitted by law as valid and lawful.
The term is also sometimes used as equivalent to a 'good' or 'sufficient' consideration.
Love and affection is a sufficient consideration when a gift is contemplated, but it is
not considered as a 'valuable' consideration when such is required.
It is one of the essential requirements of a gift that it should be made by the donor
'without consideration'. The word 'consideration' has not been defined in the T.P. Act,
but means the same as in the Contract Act excluding natural love and affection. If
not, and if the transfer involved consideration, the transaction would amount to a sale
within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The
essence of a gift inter vivos must be without 'consideration' of the nature defined in
sec. 2(d) of the Contract Act.
Where a very old man, with weak eyesight, sues for cancellation of the deed of gift
executed by him in favour of his son alleging that it was not his voluntarily act. The
circumstance also indicated that the donee was in a position to dominate the will of
the donor. Under such circumstance the onus shifts on to the donee to prove that the
gift was made voluntarily.
In another case of the Orissa High court, Gift deed is alleged to have been taken from
a pardanashin lady by practicising fraud. When the plaintiff is an illiterate or
pardanashin lady, in spite of the fact that she is unable to establish her case of
practising fraud, the onus still remains uponi the donee to establish conclusively that
the document was executed after it was read over and explained to her and after she
understood the contents thereof.
'Without consideration' - A gift is a transfer without consideration and if there is
any consideration in any shape, there is no gift. The word 'consideration' means
valuable consideration, i.e. consideration either of money or money's worth. A gift in
lieu of conferring spiritual benefit to the donor is not a transfer with consideration,
but is to be treated as a gift.
Where a mother gifts property to her only daughter, who promises to maintain the
former throughout her life, the promise is not enforceable in law because the gift has
to be for natural love and affection and not for any consideration . A minor may be a
donee and the minor's natural guardian can accept the gift on behalf of the minor. But
if the gift is onerous, the obligations cannot be enforced against the minor during his
minority. But on his attaining majority, the minor must accept the burden or return
the gift. The donee can even be a child en ventre sa mere (in its mother's womb).
When Acceptance 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.
Acceptance. - The gift must be accepted by the donee or by someone on his behalf.

An offer without acceptance by the donee cannot complete the gift. Acceptance may
be inferred from acts prior to the execution of the deed of gift. Mere silence may
sometimes indicate acceptance provided the donee knows about the gift, slighest
evidence of acceptance being sufficient.
Even when a gift is made by a registered instrument, the same has to be accepted by
or on behalf of the donee to make it complete, failing which the gift will be bad,
because it so provides in sec. 122. What the law requires is acceptance of the gift
after its execution, though the deed may not be registered. Anterior negotiations or
talks about the gift would not amount to acceptance. Person accepting gift on behalf
of the minors appended his thumb-impression on the deed in token of acceptance. It
was held that the gift was complete. Acceptance must be essentially made before the
death of the donor. There must be something shown to indicate an acceptance. The
acceptance may be signified by an overt act such as the actual taking of possession of
the property, or such acts by the donee as would in law amount to taking possession
of the property where the property is not capable of physical possession. Acceptance
may be implied, but the rule of implied acceptance ought not to be extended so far as
to hold that the acceptance will be presumed unless dissent is shown. Acceptance will
be presumed if there is possession, actual or on the parties where some right, interest,
profit or benefit accrues to one party, or some forbearance, detriment, loss, or
responsibility is given, suffered or undertaken by the other. There is nothing in
section122 of the transfer of property Act to show that the acceptance under this
section should be express. The acceptance may be inferred, and it may be proved by
the donee's possession of the property, or even by the donee's possession of the deed
of gift.
Delivery of possession of the gifted property is not absolute requirement, for the
completeness or the validity of the gift as found in Muslim Law of Gifts.
When a gift of immovable property is not onerous, only slight evidence is sufficient
for establishing the fact of acceptance by the donee. When it is shown that the donee
had knowledge of the gift, it is only normal to assume that the donee had accepted
the gift, because the acceptance would only promote his own interest. Mere silence
may sometimes be indicative of acceptance, provided it is shown that the donee knew
about the gift. No express acceptance is necessary for completing a gift.
While mere possession by or on behalf of, a donee may amount to acceptance, mere
possession cannot be treated as evidence of acceptance where the subject matter is
jointly enjoyed by the donor and the donee.
A gift of immovable property can only be made by a registered instrument. A deed
cannot be dispensed with even for a property of small value, as in the case of a sale.
And as a further precaution, attestation by two witnesses is required. This provision
excludes every other mode of transfer and even if the intended donee is put in
possession, a gift of immovable property is invalid without a registered instrument.

Suspension and Revocation of Property


Gift of immovable property may be revoked under section 126 of the Transfer of
Property Act. Section 126 lays down two modes of revocation of gift.
First one is revocation by mutual agreement of donor and donee e.g. 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.
Second one is revocation by rescission as in the case of contracts.
According to Section 19 of the Indian Contract Act which is read as "where consent
to an agreement is caused by coercion, undue influence, fraud or misrepresentation,
the agreement is a contract voidable at the option of the party whose consent was so
obtained". Therefore, where the gift is not made voluntarily because of any of the
factors mentioned under Section 19 of the Indian Contract Act, the gift may be
revoked by the doner.
The condition revoking the gift must be expressly laid down in the gift-deed and it
must be valid under the provisions of law given for conditional transfers as laid down
under Sections10 to 34 of the Transfer of Property Act.

Illustrations
(a) A gives a field to B, reserving to himself, with Bs assent, the right to take back the field in
case B and his descendants die before A. B dies without descendants in As lifetime. A may take
back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with Bs assent, the right to take back at
pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs.
10,000, which continue to belong to A.
Cases:
In Mool Raj vs. Jamna Devi &others, the Himachal Pradesh High Court in 1995
held that since the condition of revocation of gift upon donee's failure to render
services to donor was not laid down in the deed, it was unconditional gift and,
therefore, cannot be revoked by the doner.
In 2001, the Apex Court in Thakur Raghunath jee Maharaj &other vs. Ramesh
Chandra,held that even though a condition is not laid down in the gift deed itself,

and has been provided under a mutual agreement separately but forms part of the
transaction of gift, the condition would be valid and enforceable.

Comparison of Gift under Transfer of Property Act and Personal


Laws
Gift is a transfer of property where interest is transferred from one living person to
another, without any consideration. It is a gratuitous and inter vivos in nature. This is
the general definition that is accepted by all the religions, including Muslim law. As
per the Muslim Law, a gift is called as Hiba.
Under English laws, right in property is classified by a division on the basis of
immoveable and moveable (real and personal) property. Rights in land described as
estate under English Law do not always imply only absolute ownership but it also
includes rights which fall short of it and are limited to the life of the grantee or in
respect of time and duration or use of the same[i].
Under Hindu Law, gift is regarded as the renunciation of the property right by the
owner in the favor of donee. According to Jimutvahana, under Hindu laws concept
of gift, ownership is not created by acceptance but by renunciation of the donor. But
however Mitakshara school of hindu law considers acceptance as an important
ingredient for gift. The donor can divest his interest by renunciation but cannot
impose the same on the donee if he is not ready to accept.A gift under Hindu law
need not be in writing. However, a gift under the law is not valid unless it is
accompanied by delivery of possession of the subject of the gift from the donor to
the donee. However where physical possession cannot be delivered, it is enough to
validate a gift, if the donor has done all that he could do to complete the gift, so as to
entitle the donee to obtain possession.

Under Muslim Law, the concept of Gift developed much during the period of 610
AD to 650 AD. In general, Muslim law draws no distinction between real and
personal property, and there is no authoritative work on Muslim law, which affirms
that Muslim law recognises the splitting up of ownership of land into estates. What
Muslim law does recognize and insist upon, is the distinction between the corpus of
the property itself (called as Ayn) and the usufruct in the property (as Manafi). Over
the corpus of property the law recognises only absolute dominion, heritable and
unrestricted in point of time. Limited interests in respect of property are not identical
with the incidents of estates under the English law. Under the Mohammedan law they
are only usufructuary interest (and not rights of ownership of any kind). Thus, in

English law a person having interest in immoveable property for limited periods of
time is said to be the owner of the property during those periods and the usufruct is
also regarded as a part of the corpus. On the other hand, in Muslim law, a person can
be said to be an owner only if he has full and absolute ownership. If the use or
enjoyment of property is granted to a person for life or other limited period such
person cannot be said to be an owner during that period. The English law thus
recognises ownership of the land limited in duration while Muslim law admits only
ownership unlimited in duration but recognises interests of limited duration in the use
of property. This basically differentiates Muslim Laws concept of property and gift
from that of English Law.
Under Muslim Law, the religion of the person to whom gift is made is not relevant.
In India, there is a separate statute that governs the matters related to transfer of
property. The Transfer of Property Act, 1882 under Chapter VII talks about gifts and
the procedure for making the same. Yet as per section 129 of the Act, the Transfer of
Property Act, 1882 does not apply to the Muslims making gift
In Bibi Maniran v. Mohammad Ishaque[58] a Division Bench of the Patna High
Court rejected the argument that Section 129 of the Transfer of Property Act, 1882
violated Article 14 of the Constitution; the court held that the classification between
Mohammedans and others was reasonable, having regard to the well known
fundamental differences between the religion and customs of Mohammedans on one
hand and the religion and customs of others.
The Jumma Mus jid Mercara by its Muthavalli Khan Saheb A. Abdul Rahaman Khan,
Mercara v. Kodimani Andra Devaiah and Ors. (AIR 1952 Mad 482)
The plaintiff is the Jumma Masjid, Mercara, represented by its Mutavalli, Khan Sahib
Abdul Rahman Khan. The suit is for recovery of possession of a half share in the immoveable
properties described in the schedule attached to the plaint. According to the case of the plaintiff,
the properties in suit originally belonged to one Sh. Basappa, and after his death in 1901, they
devolved on his widow, Gangamma, who became a convert to Islam, and made a gift of these
properties on 5-9-1932 to the Masjid. The properties continued in the possession of the plaintiff
till the death of Gangamma which occurred on 17-2-1933. But on her death, Santappa and
Basappa (this Basappa is a different person from Basappa the husband of Gangamma) the sister's
son's sons of Gangamma's husband Basappa, became entitled to the properties as the reversioners
to the estate. On 3-3-1933, under Ex. A. Santappa sold his half interest in the properties to the
Mosque and therefore, it is claimed that under this document, the plaintiff will be entitled at least
to a half share in the suit properties.
The father of defendants 1 to 3 one Rao Bahadur Subbayya, claimed on the death of
Gangamma that the properties belonged to him and his joint family, as they were purchased on
18-11-1920 'under Ex. III from Santhappa Basappa, and another in the name of his son,
Ganapathi, who subsequently died leaving his widow the 4th defendant. He applied for transfer
of patta and the Revenue authorities effected the transfer, and in pursuance of the order of the

Revenue authorities, Rao Bahadur Subbayya took possession of the properties from
the plaintiff.

Conclusion
The conception of the term gift and subject matter of gift has been an age old and
traditional issue which has developed into a distinct facet in property law. Different
aspects related to gift in property act and its distinction with the Mohammedan law
and its implications has been the major subject matter of this article. In considering
the law of gifts, it is to be remembered that the English word 'gift' is generic and must
not be confused with the technical term of Islamic law, hiba. The concept of hiba and
the term "gift as used in the transfer of property act, are different. As we have seen in
the project that Under Mohammedan law, to be a valid gift, three essentials are
required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift,
express or implied, by or on behalf of the donee, and (c) delivery of possession of the
subject of gift. The English law as to rights in property is classified by a division on
the basis of immoveable and moveable (real and personal) property. The essential
elements of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;
(d) the subject-matter; (e) the transfer; and the acceptance Thus this striking
difference between the two laws relating to gift forms the base of this project in
understanding its underlying implications.