Author: Bhakti Khule, III year B.A.,LL.B, from Symbiosis Law School, Hyderabad
MEANING AND CONCEPT
The very section 122 of the Transfer of Property Act, 1882 defines GIFT as, “Gift is the transfer of certain existing movable or immovable property made voluntarily and without any consideration by one person, called the donor, to another, called the done, ad accepted by or on behalf of the done.” The gift which is defined in the section is the very gratuitous transfer of possession and ownership of some of the existing properties made voluntarily.
In the definition, when we talk about a gift, it includes both the movable and immovable property. The person who is transferring a property is called the Donor and the person who is receiving the property id done. The very concept of a gift under this act is no consideration or payment in exchange. The whole concept and provisions regarding Gift in India are dealt with from the section 122 to 129 of the very Transfer of Property Act, 1882. However, there are different provisions for the Muslims who follow the Mohammedan gifts, here the TOPA is not applicable.
There aren’t much of the disputes within the ambit of various laws as the definition of the very term gift is quite clear, and it does also have a well-settled construction of provision so as to what the essentials of the gift are as well. Which is actually good in a way because they have too many different laws and differences between them, and they would tend to interfere with the very concept of the fundamentals of gifts and give it a totally different meaning altogether. For example, it is very known that the concept of gift doesn’t involve any sort of considerations and involves the element of voluntary giving or transferring one property to another who accepts the same.
This very concept of gift is very basic fundamental and would never change. The basic concept of the term “gift” as used in the Transfer of Property Act is tend to be very different from Mohammedan law. In the Mohammedan law the law of the gift is a simple transfer of one good to another in accordance with the provisions of Mohammedan law, which includes: A Hiba- it is an immediate and unconditional transfer of ownership of some right without any kind of consideration or excepted return out of it. An Ariat- the grant of a very specific, limited interest in respect to using such a thing or usufruct of some property or maybe even a right. Where the gift or right is made without consideration with the only aim to acquire some kind of religious merit, which is also called Sadaqah.
ANALYSIS OF SECTIONS
Following are various sections of The Transfer of Property Act, 1882 which specifically talk about Gifts: Section 124- The very section 124 of the Transfer of Property Act, 1882 explained that any sort of future gift property is void in nature. But a promise can be made for such a a future gift, any sort of future property which is supported by consideration is invalid in nature.
Even when we take a look at Mohammedan law, there is no consideration of future gifts anywhere. In the case of CIT VS R.S. Gupta, the court stated that if there has to be a valid gift, there should be a property which is existing. In this case the give was given to the donee by instructing a non-banking company in which the donor had his account enrolled to give effect to the gift by debiting and crediting all his account names in the name of the the donee.
Section 125 – The very section 125 of the Transfer of property act, 1882 applies to the situations where the gift is for two or more donees in common. Any sort of refusal, even if one has given, this won’t prevent gifts from taking effects as any regard of the share of another person.
Section 127 – For the Act for 1882 on the transfer of land, Onerous Gifts is dealt with. The consequence of an onerous gift is that the owner is liable to satisfy the duty with which the gift is burdened, to the sum of the gifted property in his possession. This section gives a minor the right after receiving a majority to repudiate an onerous gift.
Section 128 – There under the Act of 1882 on the Transfer of Property, a universal donor is a donor who receives all the donor's property as a gift. It is evident from a simple reading of this provision that the universal donor is responsible for the sum of the property received by him by virtue of the donor's gift certificate, but in reality, Provision 128 imposes personal liability on the universal donor.
Section 129 – This section states that, Excludes Mohammedan Law on gifts and gifts made in anticipation of death from the scope of the law of gifts in the Act of 1882 on the Transfer of Property; this very clause is highly contentious, and has been criticized for its constitutionality. Earlier in this project this was addressed in depth.
GIFT UNDER ISLAMIC LAW
There are different ways a Muslim can develop his property. Muslim law requires the inter vivos (gift) or testamentary disposition (will) transfer of property. The inter vivos disposition is unregulated about quantum, and a Muslim is allowed to give away his entire property by gift during his lifetime, but only one-third of the total property can be left at will. But the' Muslim Gifts' or the' Hiba' do not refer to Chapter VII of the Transfer of Property Act, 1882, which governs the gifts.
Even though there is no such distinction between a gift made by a non-Muslim or a Muslim, Hiba's formalities are different from those of a non-Muslim gift. Hiba is therefore governed by the Muslim Personal Law. In the case of Abdul VS Ahmed, the court clearly stated that Muslim law only allows a Muslim to give all of his property by a gift inter-vivos, even when the matter of specific object of inheriting comes into the picture of their heirs. A gift is usually an unconsidered transfer of possession of a property from a living person to another living person.
Gifts are known as Hiba' in Islamic law. To be more precise, gift means broad overtone and refers to all sorts of ownership transfers with no care whatsoever. The word' Hiba', on the other hand, has a narrow connotation.
CONCLUSION
Hence, we could conclude that the definition of the term gift and gift topic has been an age-old and conventional problem that has developed into a distinct facet of property law. Different issues relating to gift in the property act and its contrast with and consequences of Mohammedan law were the main subject of this article.
This should be remembered, when considering the rule of gifts, that the English word ' gift' is common and must not be confused with the specific term of Islamic law, hiba. The definition of hiba, and the word "gift" used in the property transfer act, is different. As we saw in the project that Under Mohammedan law, to be a legal gift, three important things must exist: (a) Declaration of the gift by the giver of property, (b) Acceptance by or on behalf of the donor of the gift, express or implied, and (c) Award of the very gift object. Hence, the researcher might state that the gift is a contract consisting of a donor's proposal or offer to give something and accept it by the donee. And it is a transfer of land directly and without any transaction, a transfer of land. The donor must have a specific intention to pass the possession for a legitimate donation to the donor. Hence, it can be revoked by the donor.
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