Gift- A comparitive study

"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.

The conception of the term "‘gift’" as used In the Transfer of Property Act is somewhat different from the practice under the Mohammedan Law. Under the Mohammedan Law a “‘gift’” is a transfer of ‘property’ or ‘right’ by one person to another in accordance with the provisions provided under Mohammedan law and includes-

A. Hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and

B. Ariat, the grant of some limited interest in respect of the use or ‘usufruct’ of some property or right.

Where a ‘gift’ of any ‘property’ or ‘right’ is made without consideration with the object of acquiring religious merit, it is called sadaqah. The terms "hiba" and "‘gift’" are often indiscriminately used but the term ‘hiba’ is only one of the kinds of transactions which are covered by the general term "‘gift’". A ‘hiba’ is a transfer without consideration. A ‘gift’ by a Muslim man in favour of his co-religionist must be under the Mohammedan Law. A ‘gift’ is not a contract (though in Islamic law it is called a contract) but the principle may be applicable even to ‘gift’.

Section 122 of the Act postulates that a ‘gift’ is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a ‘gift’ are:-

1) The absence of consideration, The transfer; and the acceptance.

2) The donor; and the donee

3) The subject-matter;

Concept of ‘Property’

Mohammedan Law - In general, Islamic law draws no distinction between real and personal property, and there is no authoritative work on Islamic law, which affirms that Islamic law recognises the splitting up of ownership of land into estates. What Islamic law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a ‘gift’ of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. 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). There is no difference between the several schools of Islamic law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.

Essentials Of ‘gift’ Under Mohammedan Law

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’.

Courts have consistently held that when there is no compliance of any of the above three essential conditions the ‘gift’ renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a ‘gift’ either of movable or immovable property. In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of ‘gift’ four elements are necessary

¢ declaration of ‘gift’ by the donor

¢ relinquishment by donor of-ownership-and dominion

¢ acceptance of the ‘gift’ by donee, and

¢ delivery of possession of the property by donor.

Acceptance- Acceptance may be made expressly or impliedly by conduct, but acceptance would be unnecessary in a case where the ‘gift’ is made by a guardian to his ward. Mohammedan law does not dispense with the necessity for acceptance of the ‘gift’ even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a ‘gift’ in favour of minor.' A minor who has attained discretion may accept the ‘gift’ even after it has been rejected. He may also refuse to accept the ‘gift’.

Delivery of possession - Under the Mohammedan law it is not necessary that there must be actual delivery of possession to make a ‘gift’ valid. It is a fundamental rule of Mohammedan law as regards ‘gift’s,that "the donor should divest himself completely of all ownership and dominion over the subject of the ‘gift’. It is essential to the validity of a ‘gift’ that there- should be a delivery of such possession as the subject of the ‘gift’ is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case.

The Donor

Donor's powers are unrestricted in Mohammedan law-

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 and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan 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 from that of a will a ‘gift’ may be made to a stranger wholly excluding the heirs.

The Donee

The donee is the person who accepts the ‘gift’, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the ‘gift’ is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the ‘gift’.

The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A ‘gift’ can be made to a child en ventre sa mere and could be accepted on its behalf.

The donee must be an ascertainable person and be a donee under this section; nor can a ‘gift’ be made to an unregistered society.

A ‘gift’ to two or more persons may be a ‘gift’ to them as joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu ‘gift’, and in a Hindu ‘gift’ the donees are presumed to take as tenants in common It is necessary in Mohammedan law that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid.

‘gift’s of Usufruct(Ariat) to unborn person or child in womb. - a hiba stands on a different footing from a ‘gift’ of a limited interest in usufruct a ‘gift’ of future usufruct to unborn persons is valid provided that the donee is in being at the time when interest opens out for heirs. A hiba in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.

Juristic persons - a ‘gift’ to juristic persons or any other institution is valid. So a ‘gift’ to corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line governed by Marumakkathayam law) are valid. Such a ‘gift’ will be valid as being one for the whole body.

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.

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 ‘gift’ed does not conveyor extinguish any title and those entries are relevant only for the purpose of collection of land revenue.

‘Gift’ defined under the Transfer of Property Act is as given below-

122. "‘gift’" defined. - "‘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.

It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those ‘gift’s that are ‘gift’s 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. 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.

Donative intention (motive) and consideration-

A ‘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.

'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 ‘gift’s 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).

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. 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.

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’.

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.

Oral ‘gift’ of an Immoveable Property- In 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

Under the Islamic law, an oral ‘gift’ is permissible. However, in order to constitute a valid ‘gift’, the donor should divest himself completely of all ownership and dominion over the subject of ‘gift’. It is also essential for the donee not only to prove that the donor had made an oral ‘gift’ in his favour, but it is also essential for him to prove that he accepted the said ‘gift’ and delivery of possession of the ‘gift’ed property had also been effected.

Although the Hindu law requires delivery of possession to complete a ‘gift’ of immovable property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession.

Since delivery of possession is not necessary, it follows that if a Hindu executes a ‘gift’ in praesenti of three villages by means of a duly registered instrument but reserves possession of the villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he would not alienate the property to anybody else, the ‘gift’ is perfectly valid.

Under the Mohammedan law, the essentials of a ‘gift’ are: declaration of ‘gift’ by the donor, an acceptance of the ‘gift’ by the donee, and delivery of possession such as is the subject of the ‘gift’ susceptible of. 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.

Possession means not always actual physical possession but possession which the property is capable of being given. So far as declaration is concerned, it must be shown that the donor either in the "presence of witnesses or otherwise made a public statement that he ‘gift’ed the property in favour of the donee and that he divested himself of the ownership of the property by delivering possession to the donee. A Mohammedan can make oral ‘gift’ of his immovable ‘gift’ subject to these conditions.

Delivery of possession being essential to the validity of a ‘gift’, it follows that if there is no delivery of possession, there is no valid ‘gift’. Under the Mohammedan law, a valid ‘gift’ can be affected by delivery of possession, and if there is delivery of possession, the mere fact that there is also an unregistered deed of ‘gift’ does not make the ‘gift’ invalid.

A Comparative of ‘gift’ In The Transfer of Property Act And In Mohammedan Law Property- ‘gift’s as given under the transfer of property Act deals only with ‘gift’s of tangible properly; and so a release of a security without consideration does not fall under this section; because, though the release of the security may be said to be a ‘gift’, still the ‘gift’ is not one of tangible property. When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register, though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the ‘gift’ of such title to get on the register is complete when a deed of ‘gift’ duly attested and registered, together with the shares and blank transfer form signed by the donor, is handed over to the donee.

Existence of Property Necessary- In order to constitute a valid ‘gift’, there must be an existing property. In other words, the subject-matter of the ‘gift’ must be certain existing moveable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of ‘gift’ of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of ‘gift’ in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, ‘gift’s might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid ‘gift’ if sums or funds are not available. A donation cannot be made of anything to be in future (e.g. future revenues of a property).

Existence Of Property Necessary Also In Case Of Hiba-

A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a ‘gift’ of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into 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’.

Oral ‘gift’ of Immoveable Property - In view of sec. 123, 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. Under the Islamic law, an oral ‘gift’ is permissible. However, in order to constitute a valid ‘gift’, the donor should divest himself completely of all ownership and dominion over the subject of ‘gift’. It is also essential for the donee not only to prove that the donor had made an oral ‘gift’ in his favour, but it is also essential for him to prove that he accepted the said ‘gift’ and delivery of possession of the ‘gift’ed property had also been.When ‘gift’ May Be Suspended Or Revoked

1) Section 126 of the Transfer of Property provides for conditions where a ‘gift’ may be revoked.the following are those conditions-

2) That the donor and donee must have agreed that the ‘gift’ shall be suspended or revoked on the happening of a specified event;

3) such event must be one which does not depend upon the donor's will;

4) the donor and donee must have agreed to the condition at the time of accepting the ‘gift’; and

5) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the ‘gift’. Section 126 is controlled by sec. 10. As such, a clause in the ‘gift’ deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A ‘gift’, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a ‘gift’ deed can be cancelled only by resorting to legal remedy in a competent court of law.

A Mohammedan on the other hand can revoke a ‘gift’ even after delivery of possession except in the following cases:

1) When the ‘gift’ is made by a husband to his wife or by a wife to her husband;

2) when the donee is related to the donor within the prohibited degrees;

3) when the ‘gift’ is Sadaka (i.e. made to a charity or for any religious purpose).

4) when the donee is dead

5) when the thing given has passed out of the donee's possession by sale, ‘gift’ or otherwise; or the thing given is lost or destroyed,

6) when the thing given has increased in value, whatever be the cause of the increase; when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and

7) when the donor has received something in exchange for the ‘gift’ Except in those cases, a ‘gift’ may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

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 ‘gift’s, 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.