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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.
(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.
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
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.
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.
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.