Family Law: Bullet Points III

Introduction
The Transfer of Property Act, 1882 deals with the transfer of property by
means of a gift. These provisions do not apply to Muslims who make transfers
which are governed by Muslim Law
Gifts can be made for any purpose, usually love or affection
Though the purpose behind a gift is immaterial if made to defeat the
provisions of law then it is invalid and voidable at the option of the creditors
Concept
Concept of a gift is it to transfer existing moveable or immovable property
voluntarily and without consideration from the donor to the donee.
Requirements of a valid gift
Parties- Donor and Donee
Subject Matter
Essential Elements- Declaration by the donor, Acceptance by the Donee and
immediate delivery of possession
The Donor
Any Muslim- Major, Sound Mind, Competent to Contract can make a valid
gift
Age- 18 in ordinary cases and 21 in case a guardian has been appointed
Sex- Even a female can make a gift, irrespective of marital status. Where a gift
is made by a Pardanashin woman then the burden of the gift is on the donee to
prove that she had full knowledge of her actions and understood the
implications of it.
Owner- The donor must be the valid owner of the property
Anyone can make a valid gift irrespective with the objective to defraud his
creditors.
The Donee
Competency to contract is not an essential requirement
A donee can be a minor and of unsound mind
Must be capable of holding property i.e. juristic person
Any sex, age, religion, even a relative or a stranger
A gift to an unborn person is void, person must be in existence
A gift can be made to a child in the womb provided the child is born within 6
months from making the gift
Subject Matter of the Gift
Property must be capable of being owned

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Property must be in existence, not something that will come into existence
later. If it is property, which will come into existence later then the gift made is
void.
The reason for it being void is that the delivery of possession has to be
immediate and therefore it is void.
Corpus and Usufruct (Page 455)
Equity of Redemption (Page 456)
Essential Ingredients of Valid Gift
Declaration by the Donor (Ijab)
Acceptance by the Donee (Qubool)
Delivery of Possession (Qabza)
DeclarationVoluntary, Free Consent
Declaration should not be tainted with a fraudulent motive
Made in presence of witnesses
AcceptanceMust be accepted by the donee
Acceptance can be made on behalf of donee by a guardian
When father is alive he alone is the legal guardian
Order of guardians- Father, Executor by will, paternal grandfather (has power
to execute by will)
There exist natural as well as testamentary guardians
Relaxation of rules in case mother is given property as guardian or stranger in
case of an orphan
In case a minor girl is married the husband can accept the gift on her behalf
Delivery of Possession
Under TPA there is no importance placed on immediate delivery of possession
Under Muslim Law however the delivery of possession is invalid if not
accompanied by immediate delivery of possession
The owner must completely divest himself from ownership and must give full
control of property to the donee. Donor must vacate entire property and
relinquish full control of the property and thus put the donee in possession of
the property.
Exceptions Where gift is made by husband to the wife and vice-versa
Father to minor child
Where the donor and donee reside in the same place of gift

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The SC laid down 6 Criteria

Donor should be sane and major

The thing gifted must be in existence at the time of transfer
If divisible must be divided and made distinct
Things gifted must not be combined with things not to be gifted.
The thing gifted must be given to the donee himself or his representatives

Formalities for Affecting a Valid Gift

Oral gift is completely valid as long as immediate possession transfer exists
Oral, writing or registered- but has to fulfill the basic requirements discussed
earlier
Oral gift has to be strictly proved in case of dispute
Musha
Musha is an Arabic word meaning confusion
It refers to an undivided share in the property
Property may be either an independent unit or a part of a unit that needs to be
ascertained or specified
Where incapable of division- Where the property is not capable of division the
donor by some means has to make it clear as to what needs to be put in the
possession of the donee.
Where capable of division- Where capable of division it must be divided and
then put in possession of the donee
Under Shia Law- The gift of an undivided property capable of division is valid
Under Sunni Law- The gift of Musha in a property capable of division is valid
from the date of its inception in certain specific situations.
NoteWhere the gifted property is capable of division but is not divided and is gifted
then it is valid under Shia Law but merely invalid under Sunni Law. Making
subsequent division of property can validate it.
Contingent Gifts are invalid
Conditional Gifts (Page 472)
Gifts with Exchange

Gifts with exchange are referred to as Hiba-bil-Iwaz

Basic essentials- bona fide and voluntary intention on the part of the donor and
payment of consideration by the donee
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Payment of consideration is one of the most important aspects of Gifts with

exchange
It maybe in the form of performance of an obligation in the form of return of a
favor
It is treated as a sale of property and all condition precedents of a sale have to
be made out here
Consideration doesnt have to be adequate, in cash or kind. It is perfectly valid
even if wholly inadequate

Revocation of Gift
Ordinarily till the gift is complete it is revocable in other words till all the
essentials of a gift are complete it can be revoked. Where the possession is
delivered the gift becomes complete but because it is a purely voluntary
transaction it can be revoked even after its completion.
Revocation can be with the consent of the donee or by a decree of the court
Right of revocation can be exercised only by the donor and not his heirs
Gift completely irrevocable whenEither donor or donee is dead
Where they are husband and wife or vice-versa
Where they are within prohibited degrees of relationship
Where the donor has received a return for the gift
Where the subject matter of the gift has been lost, destroyed or has lost its
identity
Where it has substantially increased value
A decree of the court is necessary for valid revocation. Under Shia Law a mere
declaration is valid.
Only a person whose rights are affected by a gift can challenge its validity.

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