Gift

In one line

A gift is a voluntary transfer of existing property for nothing, which must be accepted while the donor is alive and able to give, and which for land needs a registered and attested deed.

In exam wording: section 122 provides 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.

The five essentials

One, the property must be certain and existing. Future property cannot be given, and section 124 says so directly.

Two, the transfer must be voluntary, that is free of coercion, undue influence, fraud or misrepresentation. Section 4 brings in the Contract Act's meaning of those words.

Three, it must be without consideration. Any consideration in money's worth makes it a sale or an exchange. Natural love and affection is a motive, not consideration.

Four, there must be a donor and a donee. A gift to an unascertained person is impossible.

Five, it must be accepted.

When acceptance must be made. Section 122 is precise: acceptance must be made during the lifetime of the donor and while he is still capable of giving. And if the donee dies before acceptance, the gift is void.

Acceptance need not be formal. Taking possession, taking the deed, or accepting the rents will do, and acceptance may be by or on behalf of the donee, which is how a gift to a minor works.

Section 123: how a gift is made

Immovable property: the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

There is no alternative and no threshold. Unlike a sale under section 54 or a mortgage under section 59, there is no hundred-rupee line: every gift of immovable property, of whatever value, needs a registered and attested deed.

Movable property: either by such a registered instrument, or by delivery; and delivery may be made in the same way as goods sold may be delivered.

The reason for the strictness is that a gift is gratuitous. There is no price to concentrate the donor's mind and nobody on the other side with an interest in making him think twice, so the law supplies deliberation through form, exactly as it does for a mortgage under section 59.

Sections 124 and 125: what fails

Section 124: existing and future property. A gift comprising both existing and future property is void as to the latter. The existing part stands; only the future part fails. This follows from section 122's word "existing".