Table of Contents

Table of Cases .............................................................................................................. 2

Introduction .................................................................................................................. 3

Gift: Definition ............................................................................................................. 5

Valid Gift: Essential Elements ...................................................................................... 7

Onerous Gift .................................................................................................................. 8

Universal Donee ............................................................................................................ 9

Onerous Gift And Universal Donee: Difference .......................................................... 10

Conclusion .................................................................................................................... 11

Bibliography ................................................................................................................. 12

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 Table of Cases

Munni Devi vs. Chhoti,AIR 1983 All. 444.

Ajmer singh vs. Atma Singh, AIR 1985 P& H 315.

Shri Kishan vs. Hari Narayan, AIR 2008 NOC 567 All.

Damodar RaviRajan vs. T.D.Rajappa,AIR 1992 Ker. 397.

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 Introduction

"Gift" is the transfer of certain existing moveable or immoveable

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. 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.

As per definition of wikipedia A gift, in the law of property, is the

voluntary transfer of property from one person (the donor or grantor)
to another (the donee or grantee) without full valuable consideration.
In order for a gift to be legally effective, the donor must have intended
to give the gift to the donee (donative intent), and the gift must be
delivered to and accepted by the donee.

Gifts can be either:

lifetime gifts (inter vivos gift, donatio inter vivos) - a gift of a

present or future interest made and delivered in the donor's
lifetime; or
deathbed gifts (gift causa mortis, donatio mortis causa) - a future
gift made in expectation of the donor's imminent death. A
gift causa mortis is not effective unless the donor dies of the
impending peril that he or she had contemplated when making the
gift, i.e. these gifts can only be made when the donor is in a
terminal condition.

Gifts can also be:

outright - made free of any restrictions, such as being subject to

a trust
onerous - made with a burden or obligation imposed on the
donee; or
remunerative - made to compensate for services rendered

Thus overall the legal definition of Gift could be stated as A gift, in

the law of property, is the voluntary transfer of property from one

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person (the donor or grantor) to another (the donee or grantee)
without full valuable consideration.

Sec 122 of the Transfer of Property Act defines a gift which has the
following essential requisites:-

i)There must be a transfer of ownership of a property;

ii) The property should be of existing property;

iii) The transfer should be voluntary;

iv) It shall be without consideration;

v) It can be of movable or immovable property;

vi) The transfer should be accepted by the Donee from the

Donor;

vii) The acceptance of the transfer must be during the life

time of the donor and he must be still capable of giving.
In the event of the donor dying before acceptance, the gift
is void.

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 Gift: Definition

Gift has been defined in Sec. 122 of Transfer of Property Act, 1882
which states gift as is the transfer of certain existing moveable or
immoveable 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.

Thus voluntary transfer of personal property without consideration. A

parting by owner with property without pecuniary consideration. A
voluntary conveyance of land, or transfer of goods, rom one person to
another, made gratuitously, and not upon any consideration of blood
or money1.

It is required to be a voluntary transfer of property to another made

gratuitously and without consideration. This section applies to those
gifts that are gifts inter vivos or an absolute gift. Property under the
above section can be both moveable or immoveable but however
have to be tangible in nature. In order to constitute a valid gift, there
must be an existing property as already earlier elaborated.

1
Blacks Law Dictionary.

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 Valid Gift: Essentials

Going by the definition of gift provided by Sec. 122 of Transfer of

Property Act,1882; one can clearly point out the essentials of a valid
gift which are mentioned below as follows:

(a)The absence of consideration: The most basic thing which

makes a transfer of property from one person to other is the absence
of consideration or we can say that Transfer of a property from one
person to other and such transfer lacking consideration would amount
to Gift.
A gift deed was executed by a transfer by a mother to her daughter
and daughter promised her to lok after and maintain the mother
during her lifetime. It was held by the court that such gift was made
on account of natural love and effection thus not in consideration of
the promise made by daughter.2

(b) The Donor: The donor is the person who gives. Any person who
is sui juris can make a gift of his property. A minor, being incompetent
to contract is incompetent to transfer, and a gift by the minor would
therefore be void trustees cannot make a gift out of trust property
unless authorized by the terms of the contract.

On behalf of a minor, a natural guardian can accept a gift containing

a condition that the person nominated in the gift deed shall act as a
manager of the gifted property. Such acceptance would amount to
recognition by the natural guardian of the nominated person as the
manager or the agent of minor for the purpose of such property.

(c) The Donee: The donee is the person who accepts the gift, by or
on behalf of a person who is not competent to contract. A minor
therefore may be a donee; but if the gift is onerous, the obligation
cannot bee enforced against him while he is a minor. But when he
attains majority he must either accept the burden or return the gift.

The words 'accepted by or on behalf of the donee show that the

donee may be a person unable to express acceptance. A gift can be

2
Munni Devi vs. Chhoti,AIR 1983 All. 444.

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made to a child en ventre sa mere and could be accepted on its
behalf.

The donee must be an ascertainable person and be a donee under

this section; nor can a gift be made to an unregistered society.

(d) Voluntarily: Such transfer of property without any consideration

to the donee must be done without the influence of other and
moreover donor must have his consent behind such transfer.
The burden of proof that the gift was made voluntarily with free
consent of the donor,lies on the donee3.

(e) the transfer; and the acceptance: The transfer of such property
wether movable or immovable will not be considered as a deed of gift
untill and unless such transfer of property is not followed by the
acceptance f the donee.
The donee may refuse such gifts which are not benificial for him thus
acceptance of donee is necessary.4

(f) Existence of the property being transferred: The propertybeing

transferred by donor must be in existence when transfer of ownership
of such property occurs.5

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 whom 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.

3
Ajmer singh vs. Atma Singh, AIR 1985 P& H 315.
4
Shri Kishan vs. Hari Narayan, AIR 2008 NOC 567 All.
5
Damodar RaviRajan vs. T.D.Rajappa,AIR 1992 Ker. 397.

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 Onerous Gift: Definition

'Onerous gift' is a gift made subject to certain charges imposed by the

donor on the donee. The principle behind this is that he who accepts
the benefit of a transaction must also accept the burden of the same.
This section, being an embodiment of a rule of equity, applies equally
to Hindus and Mahomedans. For acceptance of an onerous gift,
acceptance of the gift itself is sufficient; there need not be any
separate and express acceptance of the onerous condition also at the
same time. The acceptance of the gift will carry with it the acceptance
of the onerous condition also, even though at the time of the gift the
donee was not aware of such condition, specially where the onerous
condition is of a trifling nature (payment of Rs. 5 as monthly
maintenance to a certain person for life). A donee not competent to
contract and accepting property burdened by any obligation is not
bound by his acceptance. But if, after becoming competent to
contract and being aware of the obligation, he retains the property
given, he becomes so bound.

Thus one can draw out two important features from Onerous gift i.e.

1. The onerous gift is subject to certain charges or obligations

imposed on the donee by the donor ;
2.The donee is at liberty to accept any transfer of gift which is
beneficial to him/her and refuse any gift which are onerous to the
donee.

In general if one can conclude it as When a gift is made subject to

conditions or obligations to be fulfilled by the recipient, it is called an
onerous gift. If donee desires to take benefit of the gift, he has to
discharge the obligation attached to the gift. It is entirely up to the
donee to accept or reject a gift but he can not accept only benefit and
reject obligation attached to it.

Onerous gift amongst other things involving separate transfers.

Where gift of several things is made by two or more separate and

unconnected or independent transfers to the same donee, the donee
is at liberty to accept some and reject those which are onerous.

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 Universal Donee: Definition

The essential condition to constitute a universal donee is that the gift

must consist of the donor's whole property. If any portion of the
donor's property, no matter whether it is moveable or immovable, is
excluded from the operation of the gift or the endowment, the donee
is not a universal donee. This concept is embodied in section 128 of
the Transfer of property Act.

Sec. 128 of Transfer of Property states that Subject to the provisions

of section 127, where a gift consists of the donor's whole property,
the donee is personally liable for all the debts due by and liabilities of
the donor at the time of the gift to the extent of the property
comprised therein.

Thus in order to beome a universal donee it is necessary for the

donor to transfer his whole property along with all the obligations
embedded with it.

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 Onerous Gift and Universal Donee: Difference

As provided in Sec. 127 and Sec.128 of Transfer of Property Act, as

both two cover Onerous Gifts and Universal Donee respectively.
Although difference between the two could be pointed out as follows:-

Onerous gift could be only a small portion of the

movable/immovable property of the donor whereas in case of
Universal Donor Donor has to gift his whole property. If any
portion of the donor's property, no matter whether it is
moveable or immovable, is excluded from the operation of the
gift or the endowment, the donee is not a universal donee.

In case of onerous gift If donee desires to take benefit of the

gift, he has to discharge the obligation attached to the gift. It is
entirely up to the donee to accept or reject a gift but he can not
accept only benefit and reject obligation attached to it while in
case of Universal Donee the complete transfer of the donors
whole property will eighter bring benifit to the donee or eighter
loss to him.

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 Conclusion

Giving gifts is a noble act. Receiving/accepting gifts gives both the

donor and donee a pleasant feeling. But the non compliance of the
essential requirements of Transfer of Property Act, Indian stamp Act
and Registration Act may spoil the effectiveness or validity of the
Gifts in the eyes of law. Both donor and donee must comply with the
legal requirements to make the gift, a pleasant one.
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.

However talking of Onerous Gift and Universal Donee there is the

burden of liabilities comes in the form of gift may be a part of the
property of the owner but in case of Universal Donee donors gift
consist of his whole property.

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References

The Transfer of Property Act, 13th Edition (2012) Dr. R.K.

Sinha

www.indiankanoon.org/gift-valid-gift

www. wikipedia.org/onerous-gift/obligatios

www.lawman.org

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