INTRODUCTION

In Indian law, a gift is defined as a voluntary transfer of property from one person (the donor) to another (the donee) without any consideration (i.e., without expecting anything in return). The concept of gift is primarily governed by the Transfer of Property Act, 1882 (TP Act), particularly Sections 122 to 129.

As per Section 122 of T P 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.

KEY FEATURES OF A GIFT (under Section 122 of the Transfer of Property Act, 1882):

1. Voluntary Transfer: The gift must be made voluntarily, without any coercion, fraud, or undue influence.
2. Without Consideration: A gift must be made without receiving anything in return.
3. Existing Property: The property being gifted must be in existence and owned by the donor at the time of the gift. A gift comprising both existing and future property is void as to the latter.
4. Transfer of Ownership: There must be a complete and immediate transfer of ownership rights from the donor to the donee.
5. Acceptance: The gift must be accepted by the donee during the lifetime of the donor and while the donor is still capable of giving it.

A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.

6. Transfer of property by gift:

For immovable property, the gift must be in writing and registered under the Registration Act, 1908, signed by or on behalf of the donor and attested by at least two witnesses.

For moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery can be made in the same way as goods sold may be delivered.

7. Revocation of Gift:

A gift can be revoked under two circumstances:

1. By Agreement: If there’s a condition agreed upon at the time of the gift that allows revocation.
2. On Grounds on which a contract can be revoked: A can be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

NECESSITY OF MAKING A GIFT.

The necessity of making a gift under Indian law is not legal but personal, social, or moral—the law does not require anyone to make a gift. However, when a person chooses to make a gift, certain legal requirements must be met for the gift to be valid.

1. Legal Necessity

No Legal Compulsion

• There is no obligation under Indian law to make a gift.
• A gift is purely a voluntary act and not required by law unless:

It is part of a legal settlement or

Directed by a will (in which case it becomes a testamentary gift, governed by succession laws).

2. Practical or Personal Necessity: Generally, the purposes of making gift are:

• Love and Affection: Common in gifts to family members or friends.
• Charity or Religious Reasons: Donations to temples, NGOs, or causes.
• Reward or Gratitude: For appreciation or services rendered.
• Estate Planning: To transfer wealth to heirs during one’s lifetime.
• Tax Planning: In some cases, used to manage or reduce tax liability.

ESSENTIAL FACTORS REQUIRED TO MAKE A GIFT

1. Donor (Giver of the Gift)

• Must be competent to contract:
• Sound mind
• Not a minor
• Legal owner of the property being gifted

2. Donee (Receiver of the Gift)

• Can be any person, including:
• Individuals
  • Minors (through a guardian)
  • Companies
  • Trusts or institutions
  • Must accept the gift (either directly or through an authorized person)3. Existing Property
  • The gift must be of existing (present) property, not future property.
  • Can be movable or immovable, tangible or intangible.4. Voluntary Transfer
  • The gift must be made willingly by the donor.
  • No coercion, fraud, undue influence, or misrepresentation.5. Without Consideration
  • A gift must be gratuitous—i.e., given without any money, exchange, or compensation.
  • Even a token consideration makes it a sale, not a gift.

  6. Acceptance by the Donee
  • Mandatory for the validity of the gift.
  • Must be accepted:
  • During the lifetime of the donor
  • While the donor is still capable of giving
  • Acceptance can be express or implied (e.g., taking possession).

  7. Delivery of Possession
  • For movable property: Actual delivery or symbolic delivery is required.
  • For immovable property: Ownership is transferred through registration of the gift deed, and physical possession can follow.

  8. Legal Formalities

  a. Gift of Movable Property:
  • Can be oral or written.
  • Must be accompanied by delivery of possession.

  b. Gift of Immovable Property:
  • Must be made by a written instrument (gift deed).
  • Must be:
  • Signed by the donor
  • Attested by at least two witnesses
  • Registered under the Registration Act, 1908

  CONTENTS OF A VALID GIFT

  1. Heading/Title
  • The document should clearly be titled as “Gift Deed”.

  2. Details of the Donor
  • Full name, age, address
  • Proof that the donor is the legal owner of the property
  • Confirmation that the donor is competent to gift (i.e., of sound mind, not a minor)

  3. Details of the Donee
  • Full name, age, address
  • Relationship with the donor (optional but common)
  • Statement that the donee is capable of accepting the gift

  4. Description of the Property
  • Clear and full details of the property being gifted:
  • Immovable Property: Area, boundaries, location, survey number, etc.
  • Movable Property: Type, quantity, identifying features

  5. Statement of Ownership
  • Declaration that the donor is the absolute and legal owner of the property
  • No encumbrances or disputes, unless disclosed

  6. Voluntary Nature of the Gift
  • Clear statement that the gift is made voluntarily, without coercion, fraud, or undue influence

  7. Absence of Consideration
  • Declaration that the gift is made without any consideration

  8. Acceptance by Donee
  • Statement that the donee has accepted the gift
  • If possible, include the date and method of acceptance (especially for movable property)

  9. Delivery of Possession
  • For movable property: mention how and when possession was delivered
  • For immovable property: mention symbolic delivery and intention to hand over

  10. Signatures
  • Signature of the donor
  • Signature of the donee (to confirm acceptance)

  11. Attestation by Witnesses
  • At least two witnesses must:
  • Sign the deed
  • Include their names, addresses, and signatures
  • Required under Section 123 of the Transfer of Property Act

  12. Date and Place of Execution
  • The date on which the gift deed is signed
  • Place of execution

  SAMPLE GIFT DEED FORMAT (for Immovable Property)

This Deed of Gift is made on this ___ day of ________, 20 by:

[Donor’s Full Name],

S/o or D/o ___________, aged ___ years, residing at ———-(hereinafter referred to as the “Donor”)

IN FAVOUR OF

[Donee’s Full Name],

S/o or D/o ___________, aged ___ years, residing at ————(hereinafter referred to as the “Donee”)

WHEREAS
1. The Donor is seized and possessed and is absolute and sole owner of the immovable property situated at…….and more particularly described in the Schedule below (hereinafter referred to as the “said property”).

2.The Donor, out of natural love and affection for the Donee, wishes to gift the said property to the Donee without any consideration.

NOW THIS DEED WITNESSETH AS FOLLOWS:

1. The Donor hereby gifts, conveys, and transfers the said property to the Donee, voluntarily and without any consideration.
2. The Donee has accepted the gift and taken or will take possession of the said property.
3. The Donor affirms that:

• They have a clear and marketable title to the property.
• The said property is free from encumbrances, liens, or disputes.

4. The Donor hereby declares that:

• The gift is irrevocable.
• The Donee shall henceforth be the absolute owner of the property, with all rights of possession, enjoyment, and transfer.

IN WITNESS WHEREOF

The Donor as well as Donee (by way of acceptance of said gift) have put their respective signature on the day, month, and year first hereinabove written.

 

SCHEDULE OF PROPERTY REFERRED TO

(Here, mentions the detailed description of the immovable property, such as plot number, area, address, boundaries, etc.)

Signed by the Donor:
(Signature)
Name: _______________

Signed by the Donee:
(Signature)
Name: _______________

Witnesses:

1. Name: ___________________
Address: _______________________
Signature: ______________________

2. Name: ___________________
Address: _______________________
Signature: ______________________

 

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FAQ (Frequently Asked Questions):

Q.1. What is a “gift” under Indian law?

A gift is a voluntary transfer of property by one person (donor) to another (donee) without any consideration, as defined under Section 122 of the Transfer of Property Act, 1882.

Q 2. What types of property can be gifted?
• Movable property (e.g., jewellery, money, shares)
• Immovable property (e.g., land, house)
• Tangible or intangible property, as long as it’s legally transferable

Q3. Is a gift valid without registration?
• Movable property: Can be gifted orally with delivery of possession.
• Immovable property: Must be by written deed and registered under the Registration Act, 1908 to be valid.

Q4. Is consideration allowed in a gift?

No. A gift must be made without consideration. Any exchange of money or value converts the transaction into a sale.

Q5. Can a gift be conditional?

Yes, a gift can be made with conditions, as long as they are:
• Lawful
• Not impossible or immoral
• Clearly mentioned in the gift deed

Q6. Can a gift be revoked?

Generally, no. A gift is irrevocable unless:
• It was made under fraud, coercion, or undue influence
• There is a valid condition of revocation agreed upon in the deed (Section 126, TPA)

Q7. Is a minor allowed to make or receive a gift?
• A minor cannot make a valid gift.
• A minor can receive a gift, but it must be accepted on their behalf by a guardian.

Q8. Are witnesses required for a gift deed?

Yes, for immovable property, the gift deed must be attested by at least two witnesses.

Q9. What is the role of stamp duty in a gift?
• Stamp duty must be paid according to the State-specific Stamp Act.
• Rates may vary, and concessions are sometimes available (e.g., for gifts to family members).

Q10. Is it necessary to take possession to complete a gift?
• Yes, acceptance and possession by the donee are essential.
• For movables, physical or symbolic delivery is needed.
• For immovables, symbolic delivery and registration are sufficient.

Q11. Can a gift be made to multiple people?

Yes, a donor can gift property to more than one donee, provided each donee accepts their share.

Q12. Can gifts be challenged in court?

Yes, gifts can be challenged on grounds like:
• Lack of capacity (e.g., donor was a minor or mentally unfit)
• Fraud or coercion
• Invalid execution or lack of registration