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Publication: The Times Of India Bangalore; Date:2010 Oct 22; Section:Times Property; Page Number 59

GIFT DEED HAS TO BE REGISTERED TO


MAKE IT VALID
Ashish Gupta outlines some conditions to be met to make
a gift of property valid as specified by the Transfer of
Property Act

Agift is the transfer of property by one person to another made voluntarily and without
consideration. The person transferring the property is called the donor. The person to
whom the property is transferred is called the donee. The donee must accept the property.
Such acceptance must be made during the lifetime of the donor and while he is still
capable of giving it. In case the donee dies before acceptance, the gift is void.

According to Section 122 of the Transfer of Property Act, the essential elements of a gift
are:

Transfer of property
Absence of consideration
Acceptance by donee
There cannot be a gift without a giving and taking. The giving and taking are two
simultaneous and reciprocal acts that constitute a gift. In order to constitute a valid gift, a
basic requirement is acceptance. There is no specified mode for acceptance. A transaction
of gift in order to be complete must be accepted by the donee during the lifetime of the
donor. The acceptance can be established through different circumstances such as the
donee taking possession of the property or being in possession of the deed of gift alone. If
a document of gift, after its execution or registration in favour of the donee, is handed
over to him by the donor, it amounts to a valid acceptance of the gift.

Who can gift property?

Any person who is the legal owner can make a gift of his property. A minor, being
incompetent to contract, is incompetent to transfer property as a gift. A gift by a minor will
be void. On behalf of a minor, a natural guardian can accept a gift containing a condition
that the person nominated in the gift deed will act as a manager of the gifted property.
Such acceptance amounts to recognition of the natural guardian of the nominated person
as a manager for the purpose of the gift of property.
While a minor may be a donee, if the gift is onerous, the obligation cannot be enforced
against him while he is a minor. But later, he must either accept the burden or return the
gift.
A gift may be accepted on behalf of a donee. The donee may be a person unable to
express acceptance. The donee must be an ascertainable person. The gift must be an
existing property. It cannot be a future property.

Registration mandatory

Under Section 123 of the Transfer of Property Act, a gift of property, which is not
registered, is bad in law and cannot pass any title to the donee. Documents should be
stamped and registered as required. Mere delivery of possession without a written
instrument cannot confer title. A deed cannot be dispensed with even for a property of
small value. 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 property is
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invalid without a registered instrument.

Revoking a gift

Section 126 of the Transfer of Property Act provides that a gift may be revoked if some
conditions are met. The donor and donee must have agreed that the gift will be suspended
or revoked on the happening of a specified event. Such an event must not depend on the
donor's will. The donor and donee must have agreed to the condition at the time of
accepting the gift. The condition should not be illegal or against the estate created under
the gift.
A gift which was not based on fraud, undue influence, misrepresentation or an onerous
one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by resorting
to legal remedy in a court of law.

QUICK BYTE

ONLY A PERSON COMPETENT TO CONTRACT CAN GIFT PROPERTY

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