What is a Gift?
A gift is giving something to someone out of love and affection without asking or expecting for anything in return. Gifts are something which is a part of our lives since times immemorial. Be it someone’s birthday or wedding or great achievement, gifts have always been a way of showcasing one’s love and affection.
Legal Definition of Gift:
The gift is defined under the Transfer of Property Act, 1882 which deals with the transfer of movable and immovable property. Section 122 of the Act states that:
“Gift is the transfer of certain existing movable or immovable 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.”
In simple terms when a person, on his own will, transfers a movable or immovable property to someone out of love and affection without expecting anything in return, she is said to make a gift. The person who gives it is donor while the person receiving it is donee.
Essentials of a valid Gift:
For a gift to be valid, these are the essentials:
1. Existing property – The property to be gifted, either movable or immovable must be an existing property and if it consists of both existing and future property, it is void as to the extent of the future property.
2. Voluntarily – A gift to be valid should be made by the donor voluntarily without any coercion, undue influence, fraud or misrepresentation.
3. Without consideration – A gift can be valid only and only if it is made without any expectations for something in return, that is, it should be made without consideration.
4. Acceptance by the donee – A gift to be valid, need to be accepted by the donee, that too before the death of the donor otherwise, it shall be void.
5. Competent donor – The donor must be competent to make a transfer of property by gift. The donee may be a minor in case of which someone shall accept on his/her behalf and after attaining a majority he/she can accept or reject it.
6. Mode of Transfer – A gift of immovable property shall be valid only if it is made through a registered instrument attested by 2 witnesses. In the case of movable property, the gift shall be made through a registered instrument or by mere delivery. In Atmaram Sakharam Kalkye v/s Vaman Janardhan Kashelikar1, the Bombay High court held unanimously that when the gift was revoked before registration of an instrument, the gift was actually never made.
Revocation of a Gift:
A gift is a transfer of property from the donor to donee voluntarily without expecting anything in return. Now, even if the donor has transferred the property voluntarily as a gift, is it possible that it can be revoked, that is, canceled? Generally, it cannot be revoked as it is made voluntarily. However, in certain situations, revocation is allowed.
The Calcutta High Court clarified the situation in Balai Chandra Parui v/s Smt. Durga Bala Dasi & Ors.2 wherein it held that in the normal course when a gift deed has been executed by the donor, accepted by the done and registered by the registering authority, there is no scope left for revocation of the same. However, if the parties decide on a condition for revocability or if the deed is executed under coercion, undue influence, fraud or misrepresentation, the revocation is possible.
The revocation of a gift is covered under Section 126 of the Transfer of Property Act, 1882 which applies to all kinds of gifts except those between Muslims as the provisions of the Act are inconsistent with their personal laws.
Revocation of gift under the Transfer of Property Act, 1882:
Section 126 of the Transfer of Property Act, 1882 specifies when a gift can be suspended or revoked:
- If the donor and donee agree that on the happening of a specified event which does not depend on the donor’s will, the gift shall be revoked.
- Any of those cases in which if it were a contract, it might be rescinded.
1. Happening of a pre-decided event:
The Act basically states that the donor and donee must agree while making the gift that on the happening of a specified event, the gift shall stand revoked. However, that event must not depend on donor’s will, otherwise, the gift shall be void for the part it so depends.
The condition must be agreed upon mutually and mentioned specifically. The Madhya Pradesh High Court, in Nanhibai v/s Govindrao3, held that since the condition of the defendant’s failure to discharge the work of Puja-Archana would lead to revocation of the gift was not mutually decided, it cannot lead to revocation. In a case before the Delhi High Court, the Bench held that the failure of the deceased plaintiff to mention the condition that the failure of the defendants to allow him to stay in the front drawing room of the house would lead to revocation, would actually not allow the revocation of the gift even if the deceased plaintiff was not so allowed because the condition was never mentioned in the gift deed 4.
However, in Bharathi v/s Palaniammal & Ors.5, the Madras High Court held that where the defendant executed a settlement deed out of love and affection, the clause that the plaintiff has to take care of the defendant and perform his last rites is a mere wish and not a condition which would lead to revocation of the deed.
Also, the such condition must form part of the same transaction irrespective of the fact that whether it is mentioned in the gift deed or not. The Supreme Court, in Thakur Raghunathjee Maharaj v/s Ramesh Chandra 6, emphasized this point that if the condition forms part of the same transaction and is agreed upon with the mutual agreement of the parties, it would be valid and enforceable.
2. Recission if it were a contract:
The second condition states that if the gift were a contract which can be rescinded except for the failure of or lack of consideration, the gift shall be revoked. In simple terms, if the gift is made by coercion, undue influence, fraud or misrepresentation, it can be revoked. And Section 19 and Section 19A of the Indian Contracts Act, 1872 state that in case a contract is entered into between the parties where the consent of one of the parties is obtained by coercion, undue influence, fraud or misrepresentation, the consent is not free and the contract is voidable at the option of the party whose consent was so obtained. That is, one will have to prove in the court that his/her consent was not free and ultimately, it will be the court who will declare the consent as not free. That is what the Karnataka High Court explained in Narayanamma v/s Papanna 7. The Court held that the aggrieved party, whose consent was not free cannot cancel the gift unilaterally. It is the Court of Law which will declare the consent of the aggrieved party to be obtained by coercion, undue influence, fraud or misrepresentation and thus revoke the gift.
Revocation of Gift under Mohammedan Law 8
Since the provisions of the Transfer of Property Act, 1882 regarding gifts are not applicable to Muslims as being inconsistent with the Mohammedan Law (Section 129), the same is governed by Mohammedan Law. A gift is known as Hiba under Muslim personal law.
Under Muslim Law, a gift is not complete until the property being gifted is delivered by the donor to the donee. Thus, obviously, before the delivery of the property being gifted, the gift can be revoked as the gift is not yet complete.
On the other hand, if the property being gifted has been delivered, it cannot be revoked without the consent of the donee. Even if it can be revoked, it can be done only by the decree of a court.
The Sunni Muslims allow the revocation of a gift even after the delivery of possession in the following circumstances where:
The gift is made between spouses
Parties are related within the prohibited degrees
Donor or donee is dead
The subject matter of gift is no longer in donee’s possession- disposal/consumption/destruction/loss
The value of the subject matter has increased or has completely lost
Donors received something in return
The object of the gift is sadqa, that is, charity or for religious beliefs
While the Shia Muslims are governed as:
Revocation possible by a mere declaration by the donor, that is, the court’s decree is not required
A gift made to spouse is revocable
A gift made to a relative within the prohibited degrees or not is revocable
These are the main provisions with regard to the revocation of gifts made by Muslims specifically and others.
Thus, one can clearly conclude that the revocation of a gift is possible, but in certain circumstances, on the fulfillment of certain conditions.
1 Atmaram Sakharam Kalkye v/s Vaman Janardhan Kashelikar, (1924) 48 Bom 435
2 Balai Chandra Parui v/s Smt. Durga Bala Dasi & Ors., AIR 2004 Cal 276
3 Nanhibai v/s Govindrao, 2007 (1) M.P.L.J.
4 Sehdev Singh Verma v/s JP S Verma & Anr., AIR 2016 Del 1
5 Bharathi v/s Palaniammal, (2011) 1 LW 998
6 Thakur Raghunathjee Maharaj v/s Ramesh Chandra, AIR 2001 SC 2340
7 Narayanamma v/s Papanna, 1987 ILR (Kar) 3892
8 Summaiya, Revocation of Gifts under Muslim Law, (May 31st, 2020 and 22:05), https://lexlife.in/2020/05/14/prenuptial-agreement-legal-angle/
This article is authored by Jhanvi Gupta, Third-Year, LL.B student at Symbiosis Law School. Pune.
Also Read – Procedure for Revocation of Gift Deed