In this legal article we are going to discuss about gifted property by the donor, weither a property be gifted by a donor to two daughters and one son out of three sons, is it voidable in the court of law or it can be contested by the other sons in the court of law before the hon'ble court?
INTRODUCTION ABOUT GIFT:
Gift" under transfer property act, 1882 is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one individual, called the donor, to another, called the donee, and acknowledged by or in the interest of the donee.
A gift may either be a gift enter vivos i.e. between living people or gifts testamentary i.e. will' usable solely after the passing of the transferor or deceased testator.
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ESSENTIAL ELEMENTS OF A VALID GIFT:
There are the following five essentials of a valid gift:
1.- There must be a transfer of certain existing movable or immovable property. There cannot be a gift of future property.
2.- The subject matter of gift may be corporeal or incorporeal. An actionable claim can be validly gifted.
3.- The gift should be made voluntarily and without consideration. In the case of Kartari v. Kewal Krishan it was held by the court that a gift deed executed by an old widow, under undue influence and fraud is void.
4.- The donor is the person who makes the gift. He should be a person who is competent to contract. Thus a minor cannot make a gift of his properties.
5.- The donee is the person who makes the gift. A gift must be accepted by the donee or by someone on his behalf. The donee must be an ascertainable person. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the done dies before acceptance, the gift is void.
6.- The acceptance by the donee may be express or implied.
SECTION 123 - TRANSFER HOW EFFECTED : TRANSFER OF PROPERTY ACT, 1882:
Below mentioned effect as per the Section 123 of TPA
1.- For the purpose of making a gift of 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.
2.- For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
3.- Such delivery may be made in the same way as goods sold may be delivered.
4.- A gift deed registered by the donee after the death of the donor without the consent of the legal representative is valid as it is not necessary that the deed should be registered by the donor himself.
GIFT OF MOVABLE PROPERTY:
In a gift of movable property, the registration is discretionary; the other method of transfer is delivery of possession. A noteworthy case is a spiritual versatile property not fit for being transferred through the delivery of possession.
VOID GIFTS UNDER TPA 1882:
Following gifts are void:
1- A gift comprising both existing and the future property is void as to the latter.
2- A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.
3- A gift made for an unlawful purpose. A gift in consideration of past illicit cohabitation is immoral and invalid.
4- A gift depending on a condition, the fulfilment of which is impossible or forbidden by law.
5- Where the donee dies before acceptance.
6- Gift by a person incompetent to contract.
7- A gift which under an agreement between the parties is revocable wholly or in part at the mere will of the donor is void wholly or in part as the case may be.
8- When gift may be suspended or revoked.
9- The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
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REVOCATION BY MUTUAL AGREEMENT AS PER THE TPA 1882:
A gift is revocable if the donor and the donee have agreed that on the happening of a specified event and not depending upon the will of the donor, the gift should be suspended or revoked
It is important that the donor and the donee must have agreed to the condition at the time of the gift, for a gift which is complete and absolute at the time it is made cannot be modified by a condition subsequently added.
A gift of certain properties was executed in lieu of the past and future services rendered by done to donor. But failure of done to render services to donor or to maintain donor in future, was not specified to be a condition for revocation of the gift deed. The Himachal Pradesh High Court held that since the condition for revocation of gift upon donee’s failure to render services to the donor was not laid down in the deed, it was unconditional gift and, therefore, cannot be revoked by the donor.
However, even though a condition is not laid down in the gift deed itself, and has been provided under a mutual agreement separately but forms part of the transaction of gift, the condition would be valid and enforceable.Ref. Judgment:- Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340.
The condition for revocation of gift is a condition subsequent. It must be valid under the provisions of law given for conditional transfers. The condition totally prohibiting the alienation of property is void under Section 10 of this Act. Therefore, if the gift is made revocable with such condition, the condition itself being void, the gift is not revoked.Ref. Judgment:- Jagdeo Singh v. Nandan Mahto, AIR 1982
NO REVOCATION ON ANY OTHER GROUND:
Except on the ground of (a) condition subsequent not depending on the pleasure of the donor and (b) on the grounds justifying of a contract, a gift cannot be revoked on any other ground. A gift deed was validly executed in favour of the done. It was held that a simultaneous claim by the donor that the gift deed was revoked unilaterally by him and lodged for registration was not valid as there was no participation by the donee.Ref. Judgment:- Sheel Arora v. Madan Mohan Bajaj, AIR 2009 NOC 333 (Bom).
CONCLUSION:
Hence after considering the aforementioned provisions and case laws by various courts, it can be concluded with respect to the given facts that the said property can be gifted by the donor to those two daughters and one son out of three sons. YES, it is viable in the court of law as it is a complete discretion of the donor as to whom he wants to gift the said property and such a gift deed once made cannot be contested by other sons in the court of law as the concerned gift deed is in absolute acquaintance with the provisions of The Transfer of Property Act, 1882
A deed of gift once executed and registered cannot be revoked, unless the mandatory requirement of Section 126 of Transfer of Property Act, 1882 is fulfilled.Ref. Judgment:- Kamalakanta Mohapatra v. Pratap Chandra Mohapatra, AIR 2010 Orissa 13. So in the end it can be concluded fairly that Transfer of Property Act, 1882 and its sections is a complete code dealing with regulations of gift in India. Section 126 of the Transfer of Property Act, 1882 is very clear and elaborative upon the manner in which gifts can be suspended or revoked, which is of two ways:
i. By mutual agreement, or,
ii. By rescissions as contracts.
Apparently the substitute of revoking this gift deed by way of rescissions of contract does not apply here in this case. Thus, the rest of the sons do not have the option of contesting for the said gift deed in the court of law, since, as per the provisions of Chapter VII the stated facts of the gift deed are absolutely in compliance with the Transfer of Property Act, 1882. The donor’s act of gift deed in the favour of two daughters and one son is thus, totally just and fair and the same does not constitute a violation of rights of rest of the sons on the property concerned for the said Gift deed, hence cannot be addressed in the court of law.
This article written by Legal Advisory Interen Ms. Shakshi Shukla, She is Final Year Law Student at The ICFAI law school, Dehradun
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2 Comments
Very well researched and well written... Kudos to the writer🙏
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