Transfer of property/properties can be executed without any consideration via the avenue of a Gift or a Will. In this research article, the author will be discussing the concepts broadly in addition to highlighting the difference between the two.
The word, ‘Gift” primarily embodies a gratuitous transfer which is essentially voluntary in nature. It subsumes a transfer of ownership of an existing immovable or movable property without any due consideration that is put in effect essentially between the donor (the giver of gift) and the donee (the receiver of the gift), or it can be accepted by another person actively, on behalf of the donee. It is imperative for the donee to accept the gift while the donor is alive and is capable of giving the said gift. The gift becomes void if it executed after the death of the donor.
Section 122, of the Transfer of Property Act deals with the concept of Gift. The section clearly postulates the essentials that constitute a valid gift. The section avers, that for a gift to be valid, the immovable or movable property must already be in existence for it to be transferred between the donor and the donee. The transfer of gift becomes void if it is made in reference to a future property. The section entails the transfer of a property that is fundamentally in existence at the required date of the gift, although the transfer might be executed on a future date. Section 122, also emphasizes on the fact of the gift is transferred voluntarily and willingly, out of affection and love. For the transfer to be voluntary the donor needs to understand the nature of the transaction being undertaken.
In the case of, Kartari v Kewal Krishan , an illiterate donor was taken to a hospital under a misconception and compelled to affix her signatures on documents donned as hospital formalities. In the aforementioned case, the court held the gift to be void as the property in the said case was transferred by exercising undue influence and wrongful means.
The section, also deals with the competency of the donor, as for a gift deed to be executed the donor is required to be competent and possess and sound and righteous mind. A gift cannot be executed by a minor as a donor. On the other hand, the donee can be a single person or a number of persons. Gifts cannot be made to society at large however it can be made to two or more persons. However, if one person from the above mentioned two is incapable of taking the gift, the other one is deemed to be the bearer of the whole gift. This was held in the case of Nandi Singh v. Sita Ram.  The section therefore clearly states as the acceptance of the donee to be essential for the execution of the deed. The acceptance can be implied or expressed as per the preference of the donee or the person on his behalf.
For the transfer of the gift to be adjudged as valid, the transfer must be registered, signed upon by the donor and must be attested by at least two witnesses. As mentioned above, the gift has to be voluntarily given by the donor, and the gift deed is a testament of the same essential. It essentially mentions the nature of willingness of the donor and the absence of coercion and undue influence. The deed also mentions the solvency status of the donor along with the execution being made out of love and affection and not for any consideration, monetary or otherwise.
The acceptance of the donee is also recorded duly in the gift deed. The registration of gift deed is another important step, the gifts that involve an immovable property must be registered under TOPA, because unless this is met upon the title of the gift is not passed to the donee. However, the transfer of a movable property does not necessarily mandate the registration of the same.
Therefore, it can be settled that a document that evidences the transfer of property from a donor to a donee is called a gift deed.
The Indian Succession Act, 1925 defines the concept of will. It states the intention of the testator with regards to his/her property that must be carried out after their death. Property majorly has two types, namely Personal property and Real property. The former consists of tangible and intangible properties and the latter consist of properties such as land and buildings. A person can transfer his/ her property by the mode of a will, that will be executed post their death. It is considered to be an easier and feasible mode of transfer as compared to other modes of transferring properties since it does not necessarily require registration or stamping. As mentioned in the aforementioned paragraphs a gift of an immovable property requires to be registered and stamped as per the prevalent stamp laws.
As per the provisions of the Indian Succession Act, 1925 for a will to be executed, it needs to be finalised on a physical copy and it must be executed by the testator in presence of at least two sound mind witnesses.
A will is in terms of a legal declaration of a person to transfer his/her assets to another person/persons which falls into effect after the death of the testator. As stated above, the registration of wills is not mandatorily required by law but is highly suggested to cut short on the money and resources spent on litigation with regards to the succession of the said properties contained in the will. Also, it is important to understand as to how any asset inherited via the medium of a will is exempt from income tax as they are treated as assets with inadequate considerations.
After the death of a person, the mode through which one’s property is transferred is either by the way of a will, in case a will is executed by the deceased. And when a will is not executed the property passes on his next of kin as per the laid down provisions of the succession act applicable to the said deceased.
If individual wishes to bequeath his/her assets to a person of his choice specifically after their death, and want to enjoy their property while they are alive, the execution of a will is the right choice to go for. This ensures, a seamless transfer of the said property after the testator’s death ensuring the nominees exercise the ownership on the property inherited by the testator. Both will and gift deed are a set of different legal documents. A gift deed does not empower the donor to instruct a new gift deed or change his/her decision as it is irrevocable in nature. However, in case of a will, the testator can revoke the will if he changes his intentions during his lifetime.
Also, as good as the gift deed is executed in favour of the donee by the donor, the donee becomes the immediate owner of the said gift in question and consequentially the donor loses all rights over the property, but in case of a will, the same can only be executed after the death of the testator or the person drawing it.
Transfer of property is deemed to be an extremely viable option when the transfer of the property is to be made immediately and not after the death of the testator or person who owns the property in his name.
A gift deed largely is an improved way to avoid legal disputes among family members by distributing assets. However, a will is a cheaper and more viable option as there is no said stamp duty payable.
In conclusion, both the legal document, namely Will and Gift Deed share certain features and at the same time are different in their mode of execution. The line between them is certainly not blurred however there exits some confusion in terms of choice to the testator or the person choosing the future of his property.
Section 122, Transfer of Property Act, 1882.
Kartari v Kewal Krishan, (AIR 1972 H.P. 117).
Nandi Singh v. Sita Ram, (89) 16 Cal. 677; 16 Ind. App. 44 (P.C.).
Section 65, Indian Succession Act, 1925.
Tagore v. Tagore, (1872) 9 Beng LR 377.
Rajinder Singh & Anr v. Subedar Hari Singh & Ors, AIR 2000 P&H 257.
P. Gopalakrishnan, Law of Wills, 6thedition, the Law Book Company (P) Ltd., Allahabad, 1998.
Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340.
This article is authored by Richa Gupta, Fourth-Year, BBA. LL.B (Hons.) student at Symbiosis Law School, Pune.
Also Read – Is Revocation of Gift Possible?
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