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Drafting Pleading and Conveyancing

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

Project on:Gift Deed


Submitted To: Dr. B.R.N. Sharma
(D.P.C.)

Submitted By: Sukirti Shikha


Roll No.
:
823
Semester : VIII, 4th Year

ACKNOWLEDGEMENT

The present project on the Gift Deed has been able to get its final shape with the support
and help of people from various quarters. My sincere thanks go to all the members without
whom the study could not have come to its present state. I am proud to acknowledge
gratitude to the individuals during my study and without whom the study may not be
completed. I have taken this opportunity to thank those who genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to, Dr. B.R.N. Sharma
(Faculty for D.P.C., Chanakya National Law University for helping me in my project. I am
also thankful to the whole Chanakya National Law University family that provided me all the
material I required for the project. Not to forget thanking to my parents without the cooperation of which completion of this project would not had been possible.
I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.

Contents

Introduction
Meaning of gift and gift deed
Essential characteristics of gift
General principle for drafting git deed
Conclusion
Model draft

Introduction

Gift defined
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.
Acceptance when to be made.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.
Section 122 of the TP Act postulates that a gift is a transfer of certain existing movable or
immovable property made voluntary, and without consideration by one person called the
donor, to another, called a donee, and accepted by or on behalf of the donee.
The essential elements of a gift are

(a) the absence of consideration;

(b) the donor;

(c) the donee;

(d) to be voluntary;

(e) the subject-matter;

(f) the transfer; and

(g) the acceptance.

The concept of gift is diametrically opposed to any presence of consideration or


compensation.
There may be certain transactions of transfer which may not amount to a gift within the
meaning of s 122, but would be regarded as gifts for the purpose of subjecting such transfers
to the levy of tax under the Gift Tax Act 1958 because of the definition of gift contained
in s 2(xii) read with s 4 of the Gift Tax Act.2

Bequest under a will is not a transfer.3 Therefore, a will cannot be a gift since gift, by its
definition under this section, is a transfer of property.
The incidents of a gift between two Mohamedans are governed by the
and not by the TP Act. The special features of that law are untouched
of this chapter. Under Mahomedan Law, a gift requires declaration;
delivery of such possession of the subject of the gift by the donor to
subject of the gift is susceptible of.

1 K Balaksirhnan v K Kamalam AIR 2004 SC 1257, para 18, (2004) 1 SCC 581.
2 Commr of Income Tax v Sirchmal Nawalakha (2001) 6 SCC 641.

Mahomedan Law,
by the provisions
acceptance and;
the donee as the

3 N Ramaiah v Nagaraj AIR 2001 Kant 395.

Writing is not essential. If evidenced in writing, such writing does not require registration or
attestation.
A deed of gift property conveyed, transferred and exchanged as a consequence of a family
arrangement is a deed of gift, even though the donee agrees to re-convey the property for a
specified sum if called upon by the donor to do so within ten years.4
Pasupu Kumkuma means a gift, a settlement or assignment of land to a daughter. The Andhra
Pradesh High Court in Allam Gangadhara Rao v Gollapallo Ganga Rao 5 held that since the
father is under an obligation to maintain a daughter under s 3 of the Adoptions and
Maintenance Act, which includes the reasonable expenses of her marriage and, therefore, any
property given to her for or at the time of marriage, is not gift under s 122.
However, a Special Bench of the High Court in Gandevalla Jayaram Reddy v Mokkala
Padmavathamma 6 overruling Bhubaneswara Nayak Santoshrai held that Pasupu
Kumkuma creates a right in immovable property in one and the right of the owner thereof
shall be extinguished, and hence is a gift requiring registration. It further observed that the
daughters save and except under a customary or statutory right, cannot have any share in a
joint faimly property.
A deed of relinquishment is in the nature of a deed of gift. A deed of relinquishment or a deed
of gift, differs from a deed of partition in which it is not possible to hold that the partition is
valid in respect of some properties, and not in respect of others because right of persons being
partitioned are adjusted with reference to the properties subject to partition as a whole. 7
Relinquishment of share by a tenant-in-common in favour of another amounts to a gift.
Dan literally means a gift, and for all material purposes is governed by the TP Act.8

4 Deba Prsad Basu v Ashrukana Das (1977) 81 Cal WN 449.


5. AIR 1968 AP 291, para 5.
6. AIR 2002 AP 75, p 76; overruled Bhabaheswar Nail Santoshrai v The Special Tahsildar, Land Reforms,
Tekkali AIR 1980 AP 139.
7. AIR 1967 SC 401, p 405.

8. Debi Sharan v Nanlal Chaubey AIR 1929 Pat 591.

Essential of gift
Voluntarily and Without Consideration
The essence of a gift is that it is a gratuitous transfer. Blackstone says: Gifts are always
gratuitous, grants are upon some consideration or equivalent.9
The word voluntarily in the section is used in its popular sense denoting the exercise of
unfettered will, and not in its technical sense of without consideration. The principles laid
down in the Indian Contract Act 1872, relating to free consent would apply in determining
whether a gift is voluntary. This follows from s 4 of the TP Act.
Undue influence in the case of gifts is the same as that in case of contracts, ie, s 16(1), Indian
Contract Act 1872. More than mere influence must be proved to render the influence
undue. It is not sufficient to prove merely a relationship wherein one person is in a position
to dominate the will of the other. It must also be proved that the transaction was
unconscionable.10
On behalf of the donor, the essential ingredient is that he should voluntarily and without
consideration transfer the property to the donee, and the giving away implies a complete
divesting of the ownership in the property by the donor.11
The word consideration is used in the same sense as in the Indian Contract Act 1872, and
excludes natural love and affection. A transfer in consideration of an expectation of spiritual
and moral benefit, or in consideration of natural love and affection is a gift, for such
consideration is not that contemplated by the section.12
In a Allahabad case, a gift deed of property was executed by the mother in favour of her only
daughter, and the daughter promised to look after and maintain the mother throughout her
life. It was held that the promise was not enforceable in law as such. The gift was held to
have been made on account of natural love and affection, and not in consideration of the
assurance or promise made by the daughter.13
However, a gift in consideration of a donee undertaking the liability of the donor is not
gratuitous, and is not a gift.14 A gift of immovable property effected by a deed of gift but
brought about by undue influence of the donee, though the donor acted voluntarily in making
it, is not void, but is only voidable and a suit to set it aside, before possession can be claimed
by the donor or anyone claiming under him, must be brought within the three years period
prescribed by art 91 of the Limitation Act, which corresponds to art 59 of the Limitation Act
1963.

9. 2 Bl Com 440.

10. Afsar Shaikh v Soleman Bibi AIR 1976 SC 163, [1976] 2 SCR 327, (1976) 2 SCC 142, [1976] 2 SCJ 374.
11. Deo Saran v Deoki Bharthi (1924) ILR 3 Pat 842, 80 IC 980, AIR 1924 Pat 657.
12 Debi Saran v Nandlal 125 IC 127; See Tulsidas Kilachand v CIT AIR 1961 SC 1023,

13 Munni Devi v Chhoti AIR 1983 All 444, pp 447, 448, para 7.

A gift in consideration of past, or with the object of future cohabitation is immoral, and
invalid under s 6(h) of the TP Act. A transfer for services rendered may be a gift, if the
services are the motive, and not the consideration, for the transfer.
A deed of gift by which property is conveyed, transferred and exchanged as a consequence of
a family arrangement is a deed of gift, even though the donee agrees to re-convey the
property for a specified sum, if called upon by the donor to do so within 10 years.
According to the Allahabad High Court, an undertaking by the donee (a municipal
corporation) that the donee would permit the donor to live in a small room of the gifted
premises and would pay him Rs 100 per month as maintenance, does not constitute a
consideration.
An agreement to give lacks consideration, and is void under s 25 of the Indian Contract Act
1872, but that section admits of an exception if it is in writing, registered and made on
account of natural love and affection between parties standing in a near relation to each other.
Again, if the effect of the gift is to defeat or delay the creditors of the donor, it is, under s 53,
voidable at the option of any creditor so defeated or delayed. And if the donor is adjudged
insolvent within two years of the gift, it may be void as against the official assignee or
official receiver under s 55 of the Presidency-Towns Insolvency Act, and s 53 of the
Provincial Insolvency Act.
An order passed by an erstwhile ruler of a state providing for annual allowance to his sons
with retrospective effect, from the date of their birth till the date of their attaining majority,
was held to be a gift.15
Subject-matter
The subject matter of the gift must be certain existing movable, or immovable property. It
may be land, goods, or actionable claims. It must be transferable under s 6. However, it
cannot be future property.16 A gift of a right of management is valid; but a gift of a future
revenue of a village is invalid. These cases were decided under Hindu and Mahomedan law
respectively, but they illustrate the principle. In a Calcutta case, 17 it was said that the release
of a debt is not a gift, as a gift must be of tangible property. It is submitted that the release of
a debt is not a gift as it does not involve a transfer of property, but is merely a renunciation of
a right of action. It is quite clear that an actionable claim such as a policy of insurance may be
the subject of a gift (s 130).

14 ulasekara Perumal v Pathakutty AIR 1961 Mad 405; Sonia Bhatia v State of Uttar Pradesh (1981) 2 SCC
585, pp 597, 598.

15. Maharaj Dhiraj Himatsinhji & ors v State of Rajasthan & anor AIR 1987 SC 82, p 85.
16 Madhavrao v Kashibai (1910) ILR 34 Bom 287, 5 IC 599; Deo Narain v Board of Revenue (1964) ILR 1 All
375, (1963) All LJ 1088, AIR 1964 All 419.

17 Mahim Chandra v Ram Dayal (1925) 42 Cal LJ 582, 91 IC 757, AIR 1926 Cal 170.

It is submitted that in a deed of gift, the meaning of the word money should not be restricted
by any hard and fast rule, but should be interpreted having regard to the context, properly
construed in the light of all the relevant facts.
In order to constitute a valid gift, there must be an existing property. Where the donor
(assessee) has a credit account with a firm or with a family or with a company, and the sum
gifted is available to that firm or the company on the date of the gift, then a valid gift of that
sum by book entries might be possible; but where a sum was not available with the firm or
the family or a company which was not a banking company, and had no overdraft facility,
such entries would not effectuate a valid gift.
The assessee, who maintained an account in a company, made a gift of a certain sum, by
directing the company to debit his account with that sum and to credit the amount in the name
of the donee. However, on the date of the gift, the company did not have sufficient cash
balance and did not have any overdraft facilities with any bank, nor did the company itself
carry on banking business. It was held that the gift made by assessee, even though accepted
by the donee, was not valid. The amount gifted was, therefore, included in the net wealth of
the assessee.
Acceptance
In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular
mode of acceptance is required, and the circumstances throw light on that aspect. A
transaction of gift in order to be complete must be accepted by the donee during the lifetime
of the donor. Factum of acceptance can be established by different circumstances such as
donee taking a property, or being in possession of deed of gift alone. If a document of gift
after its execution or registration in favour of donee is handed over to him by the donor which
he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that
possession is given, raises a presumption of acceptance. 18 However, once it is found that the
gift was accepted and the truth of the contents of the gift deed was admitted, clinching
evidence is required to establish that the donor still retained possession with him, and the
document was not acted upon.19
What can be gifted?
Anything which qualifies as gift must have following properties
1. It must be well defined existing movable or immovable property
2. It must be transferable
3. It should exist today and should not be a future property
4. It should be tangible.

18 Pallayya v Ramavadhanulu (1903) 13 Mad LJ 364.

19 Mathura Kuer v Dharan Samaj (1916) 14 All LJ 1038, 38 IC 183.

DEED
A deed is any legal instrument in writing which passes, affirms or confirms an
interest, right, or property and that is signed, attested, delivered, and in some
jurisdictions sealed. It is commonly associated with transferring title to property.
The deed has a greater presumption of validity and is less rebuttable than an
instrument signed by the party to the deed. A deed can be unilateral or bilateral.
Deeds include conveyances, commissions, licenses, patents, diplomas, and
conditionally powers of attorney if executed as deeds.
A Gift Deed is a legal document that describes voluntary transfer of gift from donor (owner
of property) to donee (receiver of gift) without any exchange of money. The donor must be
solvent and should not use this tool for tax evasion and illegal gains.
Steps in gifting process
Gifting process can be subdivided into three parts as described below:
1. Drafting the Gift Deed A gift deed is drafted with the help of a lawyer and it describes
what is being transferred and to whom. Gift Deed is a contract between donor and the donee
which defines simultaneous and reciprocal act of giving and taking. A gift to be valid must be
made by a person voluntarily and not under compulsion without any exchange of money.
2. Acceptance Acceptance of the gift after its execution is a legal requirement and Donee
must accept the gift during the lifetime of donor. In case donee fails to accept the gift, it is
rendered invalid. The acceptance may be validated by acts such as taking possession of the
property.
3. Registration As per Section 123 of the Transfer of Property Act, a gift of immovable
property cannot pass any title to the donee unless it is registered. Attestation by two
witnesses is required during registration and post registration, title transfer is possible.
How to register a Gif Deed?

Registration of gift deed is done as per the provisions of the Registration Act, 1908. Common
steps
involved
in
registration
process
are:
1.

Valuation

of

property

being

gifted

by

an

approved

valuation

expert.

2. Payment of Stamp duty and transfer duty Stamp duty varies for women and men
(Slightly lower for women). Stamp duty also varies from state to state and for latest rates one
should
visit
official
state
government
website. 20

20. http://wap.business-standard.com/article/pf/primer-all-you-wanted-to-know-about-the-gift-deed-act114031200104_1.html

In case of Minor

Legally speaking person who owns the property can make a gift to any other person. An
exception to this rule is the case in which either of donor or donee is a minor. Minors are not
eligible to contract; therefore they cannot transfer property as a gift. A gift deed in case of
donor being a minor is legally not valid.
In case of donee being a minor, a natural guardian can accept a gift on his behalf. Guardian
acts as a manager of the gifted property, and if the gift is onerous, the obligation cannot be
enforced on donee until he/she is a minor. Once the donee is an adult, he must either accept
the burden or return the gift.

DRAFTING
Drafting relates to making a draft of something. Drafting a document would
imply making a rough copy of a document. Drafting requires knowledge of law
and required ability to eal with abstract concepts and presence of mind. The
company has to enter into various types of agreements with different parties and
have to execute various types of documents in favour of its clients, banks,
financial institutions, employees and other constituents. Drafting may be defined
as the synthesis of law and fact in a language form. Perfection cannot be
achieved in drafting unless the nexus between law, facts and language is fully
understood. The essence of legal drafting is the law and the facts of document.
The process of drafting operates in two planes: the conceptual and the verbal.
Besides seeking the right words, the draftsman seeks the right concepts.
Drafting, therefore, is first thinking and second composing. Drafting, in legal
sense, means an act of preparing the legal documents like agreements,
contracts, deeds etc.

GENERAL PRINCIPLESOTHER WRITINGS

DRAFTING

OF

DEEDS,

CONVEYANCING

AND

Key points
1. He must read the introductory note or the literature on the subject of the
instrument.
2. Note down the important requirements of law which fulfilled complete
instrument on the subject while drafting.
3. The facts which should be disclosed in the document cannot be suppressed.
Nothing is to be omitted or admitted at random.
4. A company being a legal entity. The document is executed a person duly
authorised by the directors by their resolution or by their power of attorney.
5. the format of documents adopted adheres to the customs and conventions in
vogue in the business community or in the ordinary course of legal transactions.
For any change in the form of such document, use of juridical and technical
language should invariably be followed.
6. The order of the draft should be strictly logical. Legal language should be, to
the utmost possible extent, precise and accurate. The draft must be readily
intelligible to laymen. All the time the draftsman must keep his eye on the rules
of legal interpretation and the caselaw on the meaning of particular words and
choose his phraseology to fit them.21

21 http://www.legalserviceindia.com/articles/transfer.html

7. Document should be supported by the schedules, enclosures or annexures to


the material facts. 8. Use concrete words.
9. Write short sentences.
10. Prepare a outline.

Fowlers' five rules of drafting


1. Prefer the familiar words.
2. Prefer the concrete word avoid abstract words.
3. Prefer the single word avoid synonyms words.
4. Prefer the short word rather than long words.
5. Prefer the Saxon word rather than Roman.
6. Prefer active voice to the passive voice in the drafting of documents.
Other rules
1. Sketch or outline the contents of a document before taking up its drafting.
This rule is suggested by Mr. Davidson,a celebrated authority on conveyancing in
his book on Conveyancing.
2. Skelton draft and its self-appraisal- The Draftsman should frame skeleton
draft" which should be filled in or elaborated as he proceeds with his work. Once
the draft of the document is ready, the draftsman should appraise it with
reference to the available facts, the law applicable in the case, logical
presentation of the facts.
3. Due care is required in certain documents to ensure it is adhere with
applicable laws.

CONCLUSION
The conception of the term gift and subject matter of gift has been an age old
and traditional issue which has developed into a distinct facet in property law.
Different aspects related to gift in property act and its distinction with the
Mohammedan law and its implications has been the major subject matter of this
article. In considering the law of gifts, it is to be remembered that the English
word 'gift' is generic and must not be confused with the technical term of Islamic
law, hiba. The concept of hiba and the term "gift as used in the transfer of
property act, are different. As we have seen in the project that Under
Mohammedan law, to be a valid gift, three essentials are required to exist: (a)
declaration of gift by the donor (b) an acceptance of the gift, express or implied,
by or on behalf of the donee, and (c) delivery of possession of the subject of gift.
The English law as to rights in property is classified by a division on the basis of
immoveable and moveable (real and personal) property. The essential elements
of a gift are (a) The absence of consideration; (b) the donor; (c) the donee ;(d)
the subject-matter; (e) the transfer; and the acceptance Thus this striking
difference between the two laws relating to gift forms the base of this project in
understanding its underlying implications.

Pros and Cons of Gift deed over Will


Pros
1. It is executed during the life time of donor and transfer happens immediately
whereas Will is applicable after death.
2. Gift deed needs to be registered; only then it is effective. Registration renders it
less liable to litigation. Will on the other hand is prone to litigation.
3. Transfer using gift deeds are tax free in the hands of donor and donee.
Cons

1. Gift deed is irrevocable post execution but Will can be changed as many times as
you want.
2. There is extra cost in the form of Stamp Duty in case of Gift Deeds. Stamp duty
varies from state to state.

Model Draft
No.1

THIS DEED OF GIFT is made this 28 th Day of April, 2016 BETWEEN Mr. Ramesh
Singh aged 45 years , etc . (hereinafter called the Donor ) of the one part AND
Ms. Shikha Kumar aged 40 years , etc . ( hereinafter called the Donee) of the
other part.
WHEREAS the said Donor is the absolute owner in possession of the messuages
,lands , tenements , hereditaments and premises hereinafter fully mentioned and
described in the schedule hereto , situate in Friends Colony on the Mahatama
Gandhi Road in the city of Patna of the value of Rupees 60,00,000 (Rs. Sixty
Lakhs only);
AND WHEREAS the said C.D. is the Donors cousin , having lived with the Donor
since the age of seven years and the said Donor has great love and affection for
the said Donee and is desirous out of such natural love and affection of disposing
of the said messuages , tenements, lands, hereditaments and premises in the
manner hereinafter appearing.
NOW THIS DEED OF GIFT WITNESSES that in pursuance of the said intention and
in consideration of natural love and affection which the said Donor has for the
Donee, the said Donor out of his own free will , without fraud , coercion or undue
influence from anybody whomsoever , and in full possession of senses does
hereby give , convey grant, transfer and confirm unto the said Donee all that
double-storyed pucca built house containing by measurement square feee of
land , be the same a little more or less , together with all outhouses , garage and
all privileges , profits , advantages and all other appurtenances whatsoever to
the said messuages, tenements , lands hereditaments or premises : TO HAVE
AND TO HOLD the said messuages, tenements , lands , hereditaments or
premises, hereby unto and to the use of the said Donee forever and absolutely :
AND THAT THE SAID DONEE shall and mau from time to time and at all times
hereafter peaceably and quietly enter upon , have hold , occupy , possess and

enjoy the property hereby gifted ,and receive and take the rents , issues and
profits thereof and of every part thereof , without any let or hindrance
whatsoever from or by the said Donor or by any person or persons claiming from,
under or in trust of him.
IN WITHNESS WHEREOF the said Donor has hereunto set and subscribed his
signature and delivered in the presence of the witnesses as present the day,
month and year first above-written.
Witnesses:
Sd. A.B.
1.

Mr.KunalMukherjee
Donor.

2.

Ms.ShreyshiHalder
Sd. C.D.
Donee.
Schedule of property gifted .

No. 3

Gift of property for a specified Purpose


THIS GIFT is made the 13th Day of April, 2016, BETWEEN (as in perecedent No.
2 ).
WHEREAS the Donee is the manager duly constituted of the Loreto Convent
School the plot of land measuring 4500 Square feet lying at the said school for
the purpose of the same being used by the school as a sports field.

AND WHWEWAS the Donor has agreed to transfer to the Donee the said plot of
open land more specifically described in the Schedule hereto and coloured red on
the map attached made part of this deed without any consideration.
NOW , THEREFORE , THE DEED WITNESSESS that in pursuance of the said
agreement and in the consideration of the purpose for which the open land is
needed by the Donee , the said A.B. as beneficial owner does hereby transfer by
way of gift to the said C.D. and his successors in the office of manager of the said
school ,ALL THAT piece of land more specifically described in the Schedule
hereto and coloured red on the map attached and of the value of Rupees
10,00,000 (Rs. Ten Lakhs Only): TO HOLD THE SAME UNTO the said Donee or his
successors-in-office as long as the property hereby transferred shall be used for
the purpose of a sports field for the said school or any other shool to which the

said school may be merged or made part of AND the Donee does hereby accept
the goft subject to the condition that if the DONEE or his successors-in-office
cease to use the said property for the use and benefit of the said school , as
provided , this gift shall be revoked and the said property shall revert to the
Donor.
IN WITNESS WHEREOF the said Mr. Ramesh Malotra ( Donor) and said Mr. Sanjeev
Pandey(Donee) have hereto signed at The 13 th day and the year first above
written.
Witnesses:
1. Ms.
Sd.
Mr.
Donor.
2.
Sd. Mr. Sanjeev Pandey

Sushmita
Ramesh
Ms.

Bhargav

Kaushal
Malotra
Awasthi
Donee.

The Schedule above referred to.

Deed of Gift
KNOW ALL MEN BY THESE PRESENTS , that I , Prachi Agarwal (Donor), do hereby
freely and voluntarily transfer unto Saksham Pawar (Donee) ALL THAT (here
describe the property ) valued at Rupees 60,00,000 (Rs. Sixty Lakhs ) only; TO
HOLD the same unto and to use of the said Saksham Pawar , his heirs,
successors and assigns, absolutely .
IN WITNESS whereof I, the said Donor, have hereto atsigned this DEED OF
GIFT the 30th April, of April,2016.
Witnesses:
1. Rupam Singh
2. Vartika Prasad
Sd.
Donor.