Illegal revocation of gift deed

From the contents of Section 126 of the Gift Act, it is clear that a Gift can be cancelled or rescinded only under the following circumstances.

1. On the happening of an event specified in the Gift Deed.

2. The Donor and the Donee must have agreed to such condition; acceptance of such condition specified in the Gift Deed must be agreed to by the Donee while accepting the Gift.

3. The event agreed upon must be such that the happening of it does not depend on the will of the Donor,

4. The conditions so imposed must not be repugnant to the Gift and should not be illegal or immoral,

5. A Gift may also be revoked or rescinded as if it were a contract on the same grounds on which a contract may be rescinded except on the ground of failure of consideration. 

Dear Sir,

Thank you for your reply.  Please reply in the context of muslim personal law as I am belong to this community.   

Under Muslim law a gift may be made orally or in writing, irrespective of the fact whether the property is movable or immovable. But in every case the delivery of possession must be made to the donee. But if property is in hands of tenant then constructive possession would be sufficient.

The requirement of formalities laid down or gift in S. 123, Transfer of Property Act, are not applicable to Muslim gift. The only formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the donee either actually or constructively”.

The registration of the gift-deed does not cure the defect or want of the delivery of possession, and a gift made under a registered-deed is not valid, if delivery of possession has not been made to the donee. Further, if the delivery of possession has not been made, though all the formalities laid down in S. 123, Transfer of Property Act is complied with, then such a gift is not valid.

Since clear and unequivocal declaration of intention of making a hiba is an essential element, it is essential that the donor should completely divest himself of all ownership and dominion over the subject-matter of the gift and should deliver the possession of property to the donee. The delivery of possession may be actual, constructive or symbolic.

For the validity of a gift, relinquishment of control over the subject-matter of the gift by the donor is essential. Any reservation of possession of property by the donor during his life time will render the hiba invalid. Mere book entry of possession, or deposit in the joint names of the donor and donee, does not amount to the delivery of possession.

The delivery of possession may be constructive. Thus, in a case where the donor made the gift of corpus though reserved the usufruct to himself, the payment of the government revenue by the donee in respect of the land, the subject-matter of gift, was held to be the constructive delivery of possession by the donor to the donee.

In Noorjahan v. Muftakhar, a donor made a gift of certain property to the donee, but the donor continued to manage the properties and appropriated profits to himself. Till the death of the donor, no mutation was made in the name of the donee. It was held since no delivery of possession was made, the gift failed.

When the gift is made to a minor, the delivery of possession may be made to the guardian of the minor, or to the minor himself if he had attained the age of discretion. In Hussenabi v. Husensab, a gift was made by a grandfather to his grandsons living with him.

The gift is valid is respect of the minor sons, as acceptance will be presumed to have taken place. But in the absence of proof of acceptance by the major grandson, the gift was held invalid.

Under Muslim law a gift may be made orally or in writing, irrespective of the fact whether the property is movable or immovable. But in every case the delivery of possession must be made to the donee. But if property is in hands of tenant then constructive possession would be sufficient.

The requirement of formalities laid down or gift in S. 123, Transfer of Property Act, are not applicable to Muslim gift. The only formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the donee either actually or constructively”.

The registration of the gift-deed does not cure the defect or want of the delivery of possession, and a gift made under a registered-deed is not valid, if delivery of possession has not been made to the donee. Further, if the delivery of possession has not been made, though all the formalities laid down in S. 123, Transfer of Property Act is complied with, then such a gift is not valid.

Since clear and unequivocal declaration of intention of making a hiba is an essential element, it is essential that the donor should completely divest himself of all ownership and dominion over the subject-matter of the gift and should deliver the possession of property to the donee. The delivery of possession may be actual, constructive or symbolic.

For the validity of a gift, relinquishment of control over the subject-matter of the gift by the donor is essential. Any reservation of possession of property by the donor during his life time will render the hiba invalid. Mere book entry of possession, or deposit in the joint names of the donor and donee, does not amount to the delivery of possession.

The delivery of possession may be constructive. Thus, in a case where the donor made the gift of corpus though reserved the usufruct to himself, the payment of the government revenue by the donee in respect of the land, the subject-matter of gift, was held to be the constructive delivery of possession by the donor to the donee.

In Noorjahan v. Muftakhar, a donor made a gift of certain property to the donee, but the donor continued to manage the properties and appropriated profits to himself. Till the death of the donor, no mutation was made in the name of the donee. It was held since no delivery of possession was made, the gift failed.

When the gift is made to a minor, the delivery of possession may be made to the guardian of the minor, or to the minor himself if he had attained the age of discretion. In Hussenabi v. Husensab, a gift was made by a grandfather to his grandsons living with him.

The gift is valid is respect of the minor sons, as acceptance will be presumed to have taken place. But in the absence of proof of acceptance by the major grandson, the gift was held invalid.