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By
Y. SRINIVASA RAO
M.A (English)., B.Ed., B.L., (LL.M)
I Addl. Junior Civil Judge, Bhimavaram
INTRODUCTION:
A voluntary transfer of personal property without consideration. A
parting by owner with property without pecuniary consideration. A
voluntary conveyance of land, or transfer of goods, rom one person to
another, made gratuitously, and not upon any consideration of blood or
money 1. Section 122 of the Transfer of Property Act, 1882 defines
''GIFT''2.
Oral Gift of an Immoveable PropertyIn view of sec. 123 of Transfer of Property Act, a gift of immovable
property, which is not registered, is bad in law and cannot pass any title to
the donee. Any oral gift of immovable property cannot be made in view
of the provisions of sec. 123. Mere delivery of possession without a
written instrument cannot confer any title
RECENT CASE-LAW AS TO ORAL GIFT DEED:
1. Dr. Nathu Lal Vaishi & Anr. . vs G.S.Kamal Advocate & Anr on 12 January,
2010, Delhi High Court
2. Sneh Gupta vs Devi Sarup & Ors. on 17 February, 2009, Supreme Court of
India
3. Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr.,2005 (2) AWC 1342
4. Mt. Akbari Begam vs Rahmat Husain And Ors. , AIR 1933 All 861
5. Smt. Sudha Devi And Anr. vs Smt. Shanti Devi,1995 (2) BLJR 1328
6. Ziauddin Ahmed vs M.A. Raoof (Died) By Lr., 2002 (5) ALD 830
7. Hasan Ali vs Hafiz Mustak Ali, 1986 (2) WLN 1
8. Mahboob Sahab vs Syed Ismail & Ors, 1995 AIR 1205
9. Chota Uddandu Sahib vs Masthan Bi (Died) And Ors., AIR 1975 AP 271
10. Shaik Nurbi vs Pathan Mastanbi And Ors., 2004 (3) ALD 719
1
2
3. That too, it depends upon the expressions used in the terms of the
grant. (Shaliq Ram vs Charanjit3)
4. Under partition or in lieu of maintenance, a Hindu woman acquires
an absolute estate4.
3
4
(1930) 57 IA 282
See section 14 (1) and (2) of the The Hindu Succession Act (Act XXX OF 1956)
Rameshwar Pandey And Anr. vs Suresh Pandey ,2007 (2) BLJR 895
Giano vs Puran And Ors. ,AIR 2006 P H 160
Kikabhai Samsuddin vs Collector Of Estate Duty, AIR 1969 Guj 326
T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
Mst. Noor Jahan Begum vs Muftkhar Dad Khan And Ors. , AIR 1970 All 170
Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr
HARI SINGH AND ORS. VS KALLU AND ORS. , AIR 1952 All 149
Virendra Singh And Ors. vs Kashiram (Deceased By L.Rs.) ,AIR 2004 Raj 196
MOMAN LAL VS ANANDI BAI & ORS,1971 AIR 2177 , Supreme Court of
India
10. Hutchegowda vs Smt. Jayamma And Anr. ,ILR 1996 KAR 17
11. K.S. Mohammad Aslam Khan v. Khalilul Rahman Khan
being. The manqfi may thus be transferred by the donor during his
lifetime by gift or by bequest and be the subject of gift even though
they are not in existence at the time of the gift.
3. In view of section 129 of the Transfer of Property Act, it is clear
that the rule of Mahommedan Law as to gifts is not affected under
the said Act.
4. Generally, This rule of Mohammedan law is unaffected by the
provisions of sec. 123, Transfer of property Act and, consequently,
a registered instrument is not necessary to validate a gift of
immovable property.
5. In the case of Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors.
Reported in (2009) 6 SCC 160 held thus: -"15. We may notice the definition of
gift as contained in various textbooks. In Mulla's Principles of Mohammadan
Law the "hiba" is defined as a transfer of property made immediately without
any exchange by one person to another and accepted by or on behalf of later
(sic latter). A.A.A. Fyzee in his Outlines of Muhammadan Law defined "gift"
in the following terms: "A MAN may lawfully make a gift of his property to
another during his lifetime; or he may give it away to someone after his death
by will. The first is called a disposition inter vivos; the second, a testamentary
disposition. Muhammadan law permits both kinds of transfers; but while a
disposition inter vivos is unfettered as to quantum, a testamentary disposition
is limited to one-third of the net estate. Muhammadan law allows a man to
give away the whole of his property during his lifetime, but only one-third of it
can be bequeathed by will."..."7
7. It was held in the case of ''Ashiq Ali And Ors. Vs Smt. Rasheeda
Khatoon And Anr9 '', that '' in view of the provision under Section 129
7
8 2005 (2) AWC 1342, Ashiq Ali And Ors. Vs Smt. Rasheeda Khatoon And Anr.
9
v) when the thing given has passed out of the donee's possession
by sale, gift or otherwise;
vi) when the thing given is lost or destroyed;
vii)
1. Jwala Prasad vs State Of U.P. And Ors. , 2005 (2) AWC 2271
2. Hemnath By His L.Rs. And Ors. vs Jalam Singh , 1989 (2) WLN 418
3. Smt.Alamma Chacko vs The District Registrar (Audit) on 22 February, 2008 ,
Kerala High Court
4. Ms Mayawati vs Dy Commissioner Of Income-Tax , (2008) 113 TTJ Delhi
178
5. Ramchandra Vishwanath Ghaisas ... vs The State Of Maharashtra ,AIR 1981
Bom 164
6. Maha Vidyalaya (Degree College), ... vs State Of U.P. & Others on 13 January,
2010, Allahabad High Court
7. Hemnath vs Jalam Singh ,1 (1990) WLN Rev 590
8. Dulal Chandra Chatterjee And Ors. vs Moni Mohan Mukherjee And Ors. ,2005
(2) CHN 563
9. Gift-Tax Officer vs Rajmata Shanta Devi P. Gaekwad ,2001 76 ITD 299 Ahd
10. Glitter Buildcon Pvt. Ltd. vs Mr. Sanjay Grover And Ors. , 2003 VIAD Delhi
217
IMPORTANT CASE-LAE AS TO ''ATTESTATION OF GIFT DEED'':
1. Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr on 22 April,
1999, Supreme Court of India
2. T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953
3. Balbhadar Singh vs Lakshmi Bai , AIR 1930 All 669
4. Hari Singh And Ors. vs Kallu And Ors. , AIR 1952 All 149
5. Bishwanath Raut And Ors. vs Babu Ram Ratan Singh And Ors. ,AIR 1957 Pat
485
6. Alapati Nagamma vs Alapati Venkataramayya And Ors. ,(1935) 68 MLJ 191
7. Balappa Tippanna vs Asangappa Mallappa And Anr. , AIR 1960 Kant 234
8. S. Sundaram And Anr. vs R. Damodaraswami And Anr. ,(1986) 1 MLJ 203
9. Har Prasad vs Mst. Ram Devi ,AIR 1964 All 64
10. K. Laxmanan vs Thekkayil Padmini & Ors. on 3 December, 2008 , Supreme
Court of India
REVOCATION OF A GIFT:
Section 126 of the Transfer of Property provides for conditions where a
gift can be revoked. the following are essential ingredients for revocation
of gift:
i) there must be an agreement between the donor and donee that the
gift shall be suspended or revoked on the happening of a specified
event;
ii) such event must be one which does not depend upon the will of the
donor;
iii) the condition as to the suspend or revocation should be agreed to
by the donee at the time of accepting the gift. And,
iv) there must exist a ground , except want or failure of consideration,
on which a contract may be rescinded.
v) the condition should not be illegal, or immoral and should not be
repugnant to the estate created under the gift.
vi) Section 126 is controlled by sec. 10. As such, a clause in the gift
deed completely prohibiting alienation is void in view of the
provisions contained in sec. 10.
vii)