A Gift under the Transfer of Property Act, 1882 (TPA), is defined in Section 122.
Definition of Gift (Section 122, TPA)
A “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.
Essential Elements of a Valid Gift
A transfer must satisfy the following criteria to be a valid gift under the TPA:
- Transfer of Ownership: The donor must transfer the absolute ownership (all rights and interests) in the property to the donee.
- Existing Property: The subject matter of the gift must be an existing movable or immovable property. A gift of future property is void (Section 124).
- Voluntary Transfer: The transfer must be made by the donor out of their free will and consent, without coercion, undue influence, or fraud.
- Without Consideration: The transfer must be gratuitous, meaning it is made without any monetary consideration in return. (Love and affection are not considered monetary consideration).
- Acceptance: The gift must be accepted by or on behalf of the donee during the lifetime of the donor and while the donor is still capable of giving. If the donee dies before acceptance, the gift is void.
Recent Case Laws on Gift under TPA, 1882
Recent judgments by the Supreme Court of India have clarified and reinforced key principles regarding the validity and irrevocability of a Gift Deed:
1. Delivery of Possession Not Essential for Immovable Property Gift
- Case Law: N.P. Saseendran v. N.P. Sudevan and Ors. (Supreme Court, 2025) (and earlier, Reninkuntala Rajamma v. K. Sarwanamma, 2014)
- Principle: For a gift of immovable property, the delivery of possession is not essential for its validity.
- Clarification: Section 123 of the TPA requires that a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses. Once a registered Gift Deed is executed and accepted by the donee during the donor’s lifetime, the transfer of title is complete, even if the donor retains possession or reserves a life interest in the property.
2. Unilateral Revocation of a Gift Deed is Void
- Case Law: N.P. Saseendran v. N.P. Sudevan and Ors. (Supreme Court, 2025) (and earlier, K. Balakrishnan v. K. Kamalam, 2004)
- Principle: A validly executed and accepted registered Gift Deed cannot be unilaterally cancelled or revoked by the donor (transferor).
- Clarification: As per Section 126 of the TPA, a gift is generally irrevocable. It can only be revoked in two specific ways:
- By mutual agreement between the donor and donee that the gift should be suspended or revoked upon the happening of a specified event (which must not be dependent on the mere will of the donor).
- In cases where the gift, like a contract, could be rescinded (e.g., due to fraud, coercion, or undue influence). A deed of cancellation executed unilaterally by the donor is legally void and will not affect the title of the donee.
3. Gift with Condition of Perpetual Service as Onerous Gift
- Case Law: Smt. Naresh Kumari & Ors. v. Smt. Naresh Kumari & Ors. (Supreme Court, 2024)
- Principle: A condition in a gift deed for the donee to render perpetual services without remuneration to the donor or their family may be considered an onerous gift and, if violated, could potentially lead to revocation under the principles of Section 126 of TPA read with principles of justice, equity, and good conscience.
- Clarification: This case dealt with the question of whether a gift given in consideration of “lifelong services” could be revoked when those services ceased. The court examined the terms and context, emphasizing that a transfer “in consideration” of services often blurs the line between a pure gift (gratuitous) and a conditional transfer.
4. Distinguishing a Gift Deed from a Will
- Case Law: N.P. Saseendran v. N.P. Sudevan and Ors. (Supreme Court, 2025)
- Principle: The crucial test to distinguish a Gift Deed from a Will is whether the disposition of interest in the property is in praesenti (takes effect immediately) or whether it is to take effect only on the death of the executant.
- Clarification: If a document transfers title immediately, even if it reserves a life interest or right to income for the donor, it is a Gift Deed. If the transfer is intended to operate only after the executant’s death, it is a Will (which is not governed by the TPA). The language and clear intent to divest present ownership are paramount.
