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ong vs ong
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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Introduction
Gift is a Transfer of Property and is dened in Section 122 of the Transfer of Property Act, 1882. It is a un transfer of property in the sense that it involves no consideration. The asic essence of a !ift is the co"p asence of consideration#1$. The la% of !ifts i n India is !overned y Sections 122 to 12& of the Transfer Property Act, 1882. 'o%ever (oha""edan !ifts are su)ect to the rules of (usli" *a% and the Transfer Property Property Act, 1882 is not applicale to such !ifts.
The di+erences et%een et%een the (usli" *a% of !ifts and the la% of !ifts under under the Transfer Transfer of Property Property Act a very !reat. Apart fro" a fe% "inor di+erences o%in! to reli!ion and custo" the asic essence and conc of a !ift is the sa"e under oth syste"s of la%.
There cannot cannot e too "any di+erences di+erences et%een !ifts !ifts under di+erent di+erent syste"s of la% as the denition o is very clear and there is a %ell-settled consensus as to %hat the essential ele"ents of a !ift are. To hav "any di+erences et%een the la%s of !ifts "i!ht interfere %ith the funda"entals of the concept of a !if !ive the transaction a di+erent colour. or e/a"ple there is a consensus a"on!st al"ost all syste"s of that a !ift involves no consideration and involves the ele"ents of voluntary !ivin! and acceptance follo% y possession in the hands of the donee ie. the person %ho accepts the !ift fro" the donor ie. the perso %ho !ives the !ift. This consensus is al"ost universal and %ill re"ain unchan!ed.
In this pro)ect a co"prehensive co"parative study and analysis of Gifts under the Transfer Transfer of property A 1882 and (oha""edan !ifts has een perfor"ed. This pro)ect rst deals %ith Gifts under the Transfer o Property Property Act. It e/plains and analyses the various sections dealin! %i th !ifts %ith reference to appropria case la%. The study of Hiba or a (oha""edan !ift %ith reference reference to the various rules of (oha""edan l relatin! to !ifts and )udicial interpretation interpretation also for"s an inte!ral part of the pro)ect. This pro)ect also dea %ith a donatio mortis causa or causa or a !ift "ade in conte"plation of death %ith reference to the Indian Succes Act, 1&20. In order to achieve a !reater understandin! of the concept of !ifts the transaction of !ift has co"pared and di+erentiated fro" other for"s of transfer of property. The pro)ect also co"pares the la% !ifts under the Transfer Transfer of Property Act, 1882 and the (usli" *a% of !ifts. This part of the pro)ect is e/tre"ely i"portant as it is here that the conict et%een (oha""edan !ifts and Gifts under the Trans Property Property Act, 1882 is discussed. The researcher has endeavoured to study the conict in !reat detail fro various vie%points and has also !iv en so"e su!!estions aout the sa"e.
The ri!ht to !ift a%ay a%ay ones property property %hether %hether "ovale or i""ovale is an i"portant i"portant ri!ht and an i"por ele"ent of property la%. Althou!h a !ift involves no consideration in the le!al sense it involves the Sign up to vote on this title consideration of love, a+ection, spiritual and reli!ious enet etc. %hose i"portance cannot e overloo Thus the la% relatin! relatin! to !ifts has has a hu"ane ele"ent in it and as such the la% la% of !ifts should should e clear and Useful Not useful una"i!uous %ithout any scope for "isuse and controversy. This o)ective "i!ht e idealist ut ulti"at the la% relatin! to !ifts should al%ays strive to protect the interests of the donee, donor and the propert involved in the !reater interests of )ustice.
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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The pro)ect is descriptive as %ell as analytical in nature. 'o%ever the "a)ority of the pro)ect is analytica nature.
Sources Of Data
The sources of data used are "ainly secondary in nature. A host of leadin! te/toos on Property *a% a as case reporters lie All India 5eporter 6A.I.57, Supre"e ourt ases 6S7 etc. and )ournals lie Annual Survey of Indian *a% have een referred to.
Scope and imitation
The scope of this pro)ect is li"ited to the la% of !ifts prevailin! in India only. Areas of focus and concent have een the provisions of the Transfer of Property Act, 1882 relatin! to !ifts and the rules of (usli" relatin! to !ifts in India. 4%in! to the vastness and co"ple/ity of the rules under (usli" *a% )ust the a concepts and funda"entals of the la% of !ifts have een focused upon.
Research !uestions The research questions are9 •
:hat is a !ift under (usli" *a% and the Transfer of Property Act;
•
:hat are the concepts of property associated %ith !ifts;
•
•
:hat are the various aspects of Property la% that "usli" *a% and the Transfer of Property Act d %ith in relation to !i fts and ho% You're are these various a aspects dealt %ith; Reading Preview
:hat are the di+erences et%een (aho"edan Unlock full access!ifts with aand freeGifts trial. under the Transfer of Property Act 1882;
•
Free Trial :hat are the "ain issues in the Download controversy With and conict et%een the Transfer of Property Act, 1 and the (usli" *a% of Gifts;
•
'o% has this controversy een dealt %ith ;
•
'o% can this conict e resolved so as to prevent in)ustice of any sort;
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A unifor" "ode of citation has een adopted throu!hout the pro)ect.
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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In ordinary le!al e+ect there cannot e a !ift %ithout a !ivin! or tain!. The !ivin! or tain! are t%o conte"poraneous, reciprocal acts, %hich constitute a !ift. The essential ele"ents of a !ift are9#2$ •
The Asence of onsideration
•
The ?onor
•
The ?onee
•
The Su)ect (atter
•
The Transfer
•
The Acceptance
Absence of "onsideration
The concept of Gift is dia"etrically opposed to any presence of consideration or co"pensation. The esse of a !ift is that it is a !ratuitous transfer. @lacstone says =Gifts are al%ays !ratuitous, !rants are upon s consideration or equivalent.>#$ The %ord Bvoluntarily in Section 122 of the Transfer of Property Act, 188 used in its popular sense denotin! the e/ercise of unfettered %ill and not in its technical sense of B%itho consideration. #C$
In Shakuntala v. State of Haryana [5] the Supre"e ourt stated that i t is one of the essential require"en You're Reading a PreviewThe %ord consideration has not ee a !ift that it it should e "ade y the donor B%ithout consideration. dened in the Transfer of Property Act, 1882 ut %e have no dout that it has een used in the Act in the sa"e sense as in the Indian ontract Act, 18D2full and e/cludes Unlock access with a natural free trial.love and a+ection. If it %ere to e other%ise a transfer %ould really a"ount to a sale or an e/chan!e for each party %ill have the ri!hts and su)ect to the liailities of a seller as to %hat he !ives and have the ri!hts and e su)ect to the liailitie uyer as to %hat he taes. It is the essence of a !ift that it Free should e %ithout consideration. The principle Download With Trial laid do%n in the Indian ontract Act,18D2 relatin! to free consent %ould apply i n deter"inin! %hether a is voluntary. *a% as to undue inuence is the sa"e i n the case of a !ift inter vivos as in the case of a contract. In Shakuntala v. State of Haryana [6] it %as held that a !ift "ade under undue inuence and n voluntarily %as void. The court stated that %hile tryin! a case for undue inuence it "ust consider t%o thin!s9 6a7 :hether the relation et%een the donor and donee is such that the donee is ale to do"inate %ill of the donor. 67 'as the donee used that position to otain an undue advanta!e over the donor;
Donor
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The donor is the person %ho !ives. Any person %ho is sui juris can "ae a !ift of his property. A "inor, inco"petent to contract is inco"petent to transfer and a !ift y the "inor %ould therefore e void. Trus
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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The su)ect "atter of the !ift "ust e certain e/istin! "ovale or i""ovale property. It "ay e land, ! or actionale clai"s. It "ust e transferale under Section F of the Transfer of Property Act, 1882. 'o%e cannot e future property. A !ift of a ri!ht of "ana!e"ent is valid ut a !ift of future revenue of a villa! invalid. The release of a det is not a !ift as it does not involve a transfer of property ut is "erely a renunciation of a ri!ht of action. 'o%ever an actionale clai" such as an insurance policy "ay e the su)ect of a !ift. In a !ift deed the " eanin! of the %ord "oney should not e restricted y any hard and rule ut should e interpreted havin! re!ard to the conte/t properly construed in the li!ht of all relevant facts#1$.
%ransfer
This ele"ent of a !ift is e/plained later in the conte/t of Section 12 of the Transfer of Property Act,1882 this section.
Acceptance
In order to constitute a valid !ift the pivotal require"ent is acceptance. In N.M Thakker v. .M Thakker %as held that the e/ecution of a re!istered !ift deed, acceptance of the !ift and delivery of the property to!ether "ae the !ift co"plete. Ho particular "ode of acceptance is required. ircu"stances of the ca %ill deter"ine the "ode of acceptance. A transaction of !ift in order to e co"plete "ust e accepted donee durin! the lifeti"e of the donor. If the donor dies efore acceptance the !ift eco"es void. actu" acceptance can e estalished y di+erent circu"stances such as donee tain! possession of the prope or ein! in possession of the !ift deed alone.#12$
%rusts
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Unlock access with free trial. An interpretation of Section 122 %ill reveal thatfull a !ift "ay ea "ade y the equitale "achinery of a trus and the interposition of the trustees enales a !ift to e "ade to a person not yet in e/istence and there incapale of ein! the donee of a direct !ift.
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Section (*- of the Transfer of Property Act, 1882 states ho% the transfer of a !ift is e+ected. This Secti "ay e studied under the follo%in! heads9
•
Mode of Transfer- Immovable Property
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e "ade y a re!istere A !ift of i""ovale property, no "atter %hat the value of the property, can only instru"ent. This provision e/cludes every other "ode of transfer and even if the intended donee is put i possession a !ift of i""ovale property is invalid %ithout a re!istered instru"ent.#1$ Useful
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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%itnesses. It %as held to e valid. Attestation %as proved y one of the %itnesses y cate!orically statin that he had suscried his si!natures on the !ift deed in three di+erent capacities ie. Scrie, attestin! %itness and identifyin! %itness efore the re!istrar. •
"egistration
The %ord B5e!istered in this Section does not "ean re!istered in the lifeti"e of the donor. If the other conditions to the validity of the !ift are co"plied %ith the death of the donor is not a !round for refusin! re!istration. If a !ift of i""ovale property is "ade y a re!istered instru"ent that is duly re!istered th the pre-e/istin! ri!ht, title and interest of donor stand divested in the doneee y the operation of Sectio of the Indian 5e!istration Act, 1&8. In Ku##us"ami $hettiar v. %. $hettiar #1F$ it %as held that a re!iste instru"ent styled as a release deed releasin! ri!ht, title and interest of releasor %ithout consideration " operate as transfer y %ay of !ift %hen the docu"ent clearly sho%s intention to e+ect transfer and is si! y or on ehalf of releasor and attested y at least t%o %itnesses. A !ift of i""ovale property, %hich is re!istered, is ad in la% and cannot pass any title to the donee. An oral !ift of i""ovale property cann "ade under section 12 of the Transfer of Property Act, 1882. In &omtibai v. Mattula [1#] it %as held tha "ere intention to !ive a%ay the property is not enou!h to e+ect the transfer of !ift. There has to e a re!istered !ift deed i n order for the !ift to e co"plete in the eyes of la%.
The e+ect of an insuciently sta"ped and unre!istered !ift deed %as considered in !al"ant Singh v. M Singh.#18$ It %as held that an unre!istered !ift deed cannot e used to prove title. It %as also held that under Section F of the Sta"p Act once a !ift deed is ad"itted in evidence it cannot e called into ques later on the !rounds of insuciency of sta"p. •
"evo$ation of Gift by %onor
The Privy ouncil has laid do%n that after delivery of the deed of !ift and efore re!istration the donor cannot revoe the !ift. In !hagatrai v. &hanshyamdas itPreview %as held that %here a !ift has een e+ecte [19]a You're Reading a re!istered instru"ent duly attested and the !ift has een acted upon y the donee, the title le!ally pa to the donee and cannot e defeated y Unlock any intention of with the adonor to the contrary. full access free trial. •
Mode of Transfer & Movables
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:ith re!ard to "ovale property this Section allo%s t%o alternative "odes of transfer vi3. 5e!istered de si!ned y or on ehalf of the donor and ?eli very of possession.
•
%elivery
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done all that he can to put the su)e In order that a !ift is valid under this section the donor should have "atter of the !ift %ithin the po%er of the donee to otain possession. A valid !ift "ust ordinarily e follo y possession#2$. In !aby %mmal v. Rajan %sari ['1] the court held that there "ust e proof of delivery Useful
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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Property Act, 1882 %ere fully satised and the donee %as clothed %ith a ri!ht to !et his na"e entered in co"panys oos as the donee. This ri!ht %ould prevail over the clai"s of the heirs of the donor. •
*+tent
This Section does not apply to territories e/cluded fro" the operation of the Indian 5e!istration Act, 1&
Section (*. of the Transfer of Property Act, 1882 states that a !ift of future property is void. There cann e a !ift of future property for such a !ift can only e a pro"ise and a pro"ise not supported y consideration is invalid as a contract. There cannot e a !ift of future property either under 'indu or (oha""edan la%. In $(T v. R.S &u#ta [',] the court laid do%n that in order to constitute a valid !ift ther "ust e e/istin! property. In this case a !ift %as !iven y instructin! a non anin! co"pany, r" or Jndivided a"ily in %hich the donor had an account to !ive e+ect to the !ift y deitin! his account and creditin! the account in the na"e of the donee. It %as held that "ere entries in the oos of account %o not constitute a valid !ift unless the co"pany, r" or 'indu Jndivided a"ily has sucient cash in han overdraft facilities %ith any an. The court decided that on facts the !ift in question %as invalid in ase of cash alance or overdraft facilities in the co"pany.
Section (*/ of the Transfer of Property Act,1882 applies only %hen the !ift is to t%o or "ore donees as tenants in co""on. The refusal of one donee %ill not prevent the !ift tain! e+ect as re!ards the share the others.
Section (*0 of the transfer of Property Act, 1882 lays do%n that conditional !ifts are allo%ed y la%. Th require"ents as to validity of conditions are9#20$ •
A condition should not e va!ue.
•
A condition should not e inherently i"possile of perfor"ance.
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•
Unlock full access with a free trial. The condition should not e ille!al.
•
The condition should not e i""oral.
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The condition should not e opposed to pulic policy.
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If the conditions attached to a !ift, %hether as conditions precedent or as conditions susequent, satisfy require"ents "entioned aove, they are valid and can e !iven e+ect to. If there is a valid condition precedent, the !ift %ill not tae e+ect until the condition is fullled. If up there is a valid suseque Sign to vote on thiscondition title the !ift ceases %hen the condition is satised. In N.M Thakker v. .M Thakker ['6] a conditional !ift deed Useful durin! useful retained Notthe e/ecuted y %hich possession and en)oy"ent of the property %ere donors lifeti"e. There %as no recital of acceptance and no evidence in proof of acceptance. The !ift %as to eco"e ope after the death of the donor. A susequent deed %as e/ecuted y the donor %ithin a "onth cancelin! th deed o%in! to non-full"ent of conditions su)ect to %hich there %as an oral understandin! et%een th
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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Section (*2 of the Transfer of Property Act, 1882 e/cludes (oha""edan *a% of !ifts and !ifts "ade in conte"plation of death fro" the purvie% of the la% of !i fts in the Transfer of Property Act, 1882. This is e/tre"ely controversial and its constitutionality has een challen!ed. It has een discussed in !reater detail later in this pro)ect.
·
Mohammedan #ifts Or 3iba
A Hiba or a !ift under (usli" la% li terally "eans 4the donation of a thing from ,hich the donee m derive bene5t67 K"inent )urists of (usli" la% have dened !ift in various %ays. So"e of the i"portant denitions of !ift are9#28$
M$A 9 Gift is a transfer of property, "ade i""ediately and %ithout any e/chan!e, y one person to another, and accepted y or on ehalf of the latter.
89:;; 9 Hiba is the i""ediate and unqualied transfer of the corpus of the property %ithout any return
A
The i"portance of Hiba or !ift in (usli" la% lies in the fact that %hereas (usli" la% allo%s testa"entar disposition %ithin the li"it of one-third only, a !ift inter vivos "ay e "ade %ithout any restriction. (us You're Preview *a% allo%s a person to !ift a%ay the %hole of hisReading property a durin! his lifeti"e.#2&$ *ssentials of a iba
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The essential ele"ents of a !ift under (usli" *a% are clear and %ell settled. They are9#$
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•
?eclaration of the !ift y the donor
•
Acceptance of the !ift, e/pressly or i"pliedly, y or on ehalf of the donee
•
?elivery of possession of the su)ect "atter of the !ift to the donee.
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If any of the aove ele"ents is "i ssin! the !ift is not co"plete and %ill e invalid in useful the eyes of (usli" Useful Not %e$laration
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Steelman v. US Bank, Ariz. Ct.
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detors refusal to accept the !ift. It should e noted that no acceptance is required %hen a !ift is to a fro" his or her "other or father or fro" a !uardian to a %ard.#C$ ?elivery of Possession
:hen the donor "aes a declaration of a !ift and the donee accepts, then the possession of the thin! should also e !iven to the donee. Such delivery of possession "ay e actual or constructive. It %as hel in M.M Khan v. S.% Khan [)5] that it is essential to the validity of a !ift under (oha""edan la% that the should e delivery of such possession as the su)ect of the !ift is susceptile of. In other %ords the tain the possession of the su)ect "atter of the !ift y the donee either actually or constructively is necessar co"plete a !ift. In case there is "ore than one donee, possession y one donee is presu"ed to e in the na"e and on ehalf of the other co-donees. 5e!istration of a !ift deed does not in any %ay do a%ay %ith the need for delivery of possession. There are certain cases %hen delivery of possession is not necessary and the !ift is valid even %ithout delivery of possession. They are9#F$ •
:hen the donor and donee reside in the sa"e house.
•
A !ift "ade y a husand to his %ife.
•
A !ift fro" a !uardian to a %ard or fro" a "other or father to their child.
•
:hen the su)ect of the !ift is already in possession of the donee.
?onors under (usli" *a%
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Unlock full access with a free trial. Kvery (usli" "ale or fe"ale, %ho is a "a)or, and sane "ay "ae a !ift, provided he or she is not su)e any force or fraud. A "arried (usli" fe"ale can also "ae a !ift.#D$
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?onees under (usli" *a% A !ift "ay e "ade in favour of the follo%in!9#8$ 1. 2.
Any livin! person %ho is capale of holdin! property.
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A !ift to a child in the %o" is valid provided that the child is orn %ithin si/ "onths fro" the d Useful useful as a distinct child Note/istin! of the !ift, ecause, in that case, it is presu"ed that the %as actually entity in the %o".
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A !ift of an A"%IONA<; "AIM is also valid under (usli" *a%#&$. A (usli" "ort!a!or can "ae a v !ift of his ri!ht of e.ity of redemption even if the "ort!a!ee is i n possession. Section 86D7 of the Insurance Act, 1&8 lays do%n that any person can assi!n and transfer his insurance policy his personal not%ithstandin!. Thus y virtue of this section a (usli" can "ae a valid !ift of his insurance policy. 5e!istration of Gifts
Jnder (usli" *a% a !ift "ay e oral or %ritten. As (usli" la% reco!ni3es oral !ifts thus a !ift under (u la% need not e re!istered. As section 12& of the Transfer of Property Act, 1882 e/e"pts (usli"s fro" t provisions of Section 12 of the sa"e act a !ift under (usli" la% cannot e invalidated for %ant of re!istration. In Mohammed Hesabuddin v. Mohammed Hesaruddin [,/] the court oserved that it canno taen as sine qua non in all cases that %herever there is a %ritin! aout a (oha""edan !ift of i""ova property there "ust e re!istration thereof. The facts and circu"stances have to e taen into consider efore deter"inin! %hether the !ift requires re!istration or not. In Nasib %li v. +ajed %li [,1] it %as held a !ift deed e/ecuted y a "usli" %ho has "ade a !ift in accordance %ith the provisions of (usli" la% is "erely evidence of a co"plete !ift and as such is not co"pulsorily re!istrale and is ad"issile in evide not%ithstandin! the e"ar!o laid do%n y sections 1D and C& of the Indian 5e!istration Act, 1&8. In Ni"as Todi v. !ibi *abrunnissa [,'] the Supre"e ourt of India upheld the validity of an unre!istered ora and laid do%n that (usli" personal la%s override tenancy la%s and other specic le!islations unless it is specically "entioned to the contrary in the le!islation.
Gift of (orps 0!yn and 2sfr$t 0Mana3
:hat (usli" la% does reco!ni3e and insist upon is the distinction et%een the corpus of the property its and the usufruct of the property. 4ver the corpus of the property the la% reco!ni3es only asolute do"in heritale and unrestricted in point of ti"e, and %here a !ift of the corpus sees to i"pose a condition inconsistent %ith such asolute do"inion the condition is re)ected as repu!nant, ut interest li"ited in p of ti"e can e created in the usufruct of the property and the do"inion over the corpus taes e+ect su You're Reading a Preview to any such li "ited interests.#C$
Unlock full access with a free trial. In *ameela !egum v. $ontroller of ,state Duty- Madras [,,] it %as held that a reservation of the ri!hts in "ana so lon! as the ayn is transferred does not render the !ift ad. onditional, ontin!ent and uture Gifts
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onditional Gifts "ay e of t%o types9 •
"onditional #ifts< onditional Gifts or !ifts that are suspended on a condition are invalid, unle the condition is such that it can e fullled i""ediately, in %hich case it constitutes the accepta Thus if the donor says = %hen to"orro% co"es I %ill !iveSign youup a co"puter> thetitle !ift is invalid. A to vote on this condition %hich is capale of i""ediate fulll"ent eco"es the acceptance if it is perfor"ed a Not the !ift is valid. Thus i f a person says to another =if you o%eUseful "e "oney you useful are asolved fro" i then the !ift is valid as e/istence of the det %ould constitute acceptance.
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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A hiba "ust e of e/istin! property. It cannot e "ade to tae e+ect at any future ti"e, %hether such ti" denite or indenite. or e/a"ple if A "aes a !ift to @ of =the fruit that %ill e produced y his pal" tre ne/t year> the !i ft is void as it is a !ift of future property.#CD$ Gift throu!h the "ediu" of trust
A !ift "ay e "ade throu!h the "ediu" of trust. The sa"e conditions are necessary for the validity of a !ift as those for a !ift "ade directly to the donee %ith the di+ erence that in the case of a !ift throu!h "ediu" of trust the !ift should e accepted y the trustees and possession should also e delivered to t trustees. A (oha""edan cannot throu!h the "ediu" of trust settle property for the enet of persons are incapale of tain! under the la% of !ift, nor can he throu!h a trust create an estate not reco!ni3ed the la% of !ifts of the sect to %hich he elon!s.#C8$ 5evocation of Gift
Accordin! to (usli" *a% all voluntary transactions are revocale. Thus !ifts "ay also e revoed. A !if e revoed y the donor at any ti"e efore delivery of possession. The reason is that the !ift is not a !if efore delivery of possession and hence the rules relatin! to !ifts do not apply to it. :hen a !ift i s co"p and the su)ect "atter of the !ift is duly transferred to the donee revocation of the !ift is possile only throu!h intervention of the court of la, or y the consent of the donee .
In the follo%in! cases a co"pleted !ift cannot e revoed even y the court or throu!h the consent of th donee9#C&$ •
•
:here it is "ade y the husand to his %ife or vice versa :here the donor and donee are You're related Reading to one another %ithin the prohiited de!rees y a Preview consan!uinity
Unlock full access with a free trial. •
:here the donor or donee dies
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:here the thin! !iven is destroyed or lost
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:here the thin! !iven has passed out of the donees possession y !ift, sale or other%ise
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:here the thin! !iven has increased in value
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Sign up to vote on this title :here the thin! !iven has so chan!ed that it cannot e identied
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:here the donor has received a return 6 e"a 7 for the !ift
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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A sada/a is a !ift "ade %ith the o)ect of acquirin! reli!ious or spiritual "erit.#01$ It is e/actly lie a hiba %ith the only e/ception ein! that it cannot e revoed under any circu"stance.
•
#ifts $nder %he Indian Succession Act' (2*/
A donatio mortis causa or !ift in conte"plation of death is dened y Section 1&1 of the Indian Successi Act, 1&20 as9 4 A gift is said to be made in contemplation of death ,here a man' ,ho is ill and e+pects to die shortly of his illness' delivers to another possession of any movable property =eep as gift in case the donor shall die of that illness7 Such a gift may be resumed by the giv and shall not ta=e e>ect if he recovers from the illness during ,hich it ,as made? nor if he survives the person to ,hom it ,as made76
The require"ents of a Gift in onte"plation of ?eath as laid do%n y Section 1&1 of the Indian Success Act, 1&20 are9 •
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•
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The !ift "ust e of "ovale property It "ust e "ade in conte"plation of death The donor "ust e ill and e/pects to die shortly of the illness Possession of the property should e delivered to the donee
You're Preview The !ift does not tae e+ect if the donorReading recovers afro" the illness or the donee predeceases the donor Unlock full access with a free trial. These require"ents of a valid donatio mortis causa %ere laid do%n y the Supre"e ourt of India in $omissioner of &ift Ta1 v. %bdul Karim Mohammed.#02$ In this case the Supre"e ourt interpretin! Se Download With%as Free Trial ne% in the require"ents provided 1&1 of the Indian Succession Act, 1&20 stated that there nothin! under Section 1&1 of the Indian Succession Act, 1&20.They are si"ilar to the constituent ele"ents of a valid donatio mortis causa. The ourt also laid do%n that Section 1&1 provided for "eanin! or require" of a !ift in conte"plation of death and this section could not e invoed for clai"in! e/e"ption fro" !if •
A !ift "ade in conte"plation of death is called a Mar0ul0maut under (usli" *a%. A mar0ul0maut satis the conditions of section 1&1 of the Indian Succession Act, 1&20.
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A donatio mortis causa or !ift "ade in conte"plation of death is e/e"pt fro" the provisions of Transfer Useful Not useful Property Act, 1882. The "ain di+erences et%een a donatio mortis causa and a !ift as dened in the Transfer of Property Act, 1882 are9
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Steelman v. US Bank, Ariz. Ct.
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#ift And Other %ransfers
A Gift, thou!h a transfer of property, is a !ratuity and an act of !enerosity and does not contain any ele" of consideration in any shape or for". o"plete asence of "onetary consideration is the "ain hall"a %hich distin!uishes a !ift fro" a !rant or other transactions lie lease, sale, "ort!a!e etc. %hich "ay e valuale or adequate consideration. :here there is any equivalent or enet "easured in ter"s of "on respect of a !ift the transaction ceases to e a !ift and assu"es a di+erent colour. The "otive or the pu of "ain! a !ift should not e confused %ith the consideration %hich is the su)ect "atter of the !ift. *o a+ection, spiritual enet and "any other factors "ay enter in the intention of the donor to "ae a !ift these lial considerations cannot e called or held to e le!al considerations as understood y la%.#0$
Thus in spite of a !ift ein! such a unique for" of transfer it is often confused %ith other for"s of transf property. The courts have done their it in clearin! the confusion and di+erentiatin! et%een a !ift and for"s of transfer of property. Gift and *icence
In The State of ). v. Sayed %bdul *alil [5,] the plainti+ %as allotted a house y 'is 'i!hness Ha%a of 5a"pur. After the "er!er of 5a"pur %ith J.P in 1&C& this house %as !iven to the (unicipal oard of 5a" y the Govern"ent of Jttar Pradesh. The (unicipal @oard thereupon de"anded rent fro" the plainti+ throu!h notices and on refusal to pay, attached the house. The plainti+ led a suit for declaration that h %as the o%ner of the house in possession and in the alternative he %as a licencee, entitled to re"ain in possession of the house for life %ithout pay"ent of any rent. 4n a perusal of the docu"ent y %hich this house %as allotted to the plainti+ the court oserved that the Ha%a "eant to do nothin! "ore than to to the plainti+ free residential acco""odation in a house o%ned y the !overn"ent. or a transfer of o%nership, the purpose is stated clearly to e that the property !iven %ill e o%ned and possessed henceforth y the donee in such a %ay that he can use it or deal %ith it as he lies. (ere allot"ent of acco""odation y the order of the Ha%a %ill not constitute transfer of o%nership. Transfer of o%nersh You're Reading Preview the ordinary course, is e/pected to e evidenced y "uch a "ore clear and unequivocal lan!ua!e. The transaction %as held to e a !rant of licence revocale at the !rantors option. In the asence of any full to access free trial. declaration of !ift y the donor it cannot Unlock e taen e awith !iftaof the property under the Transfer of Prope Act, 1882. Gift and :ill
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:hether a docu"ent operates as a !ift or a %ill is often a controversial su)ect. If it is a :ill, it %ill e revocale even if it contains a clause foriddin! alienation. 4ther%ise the revocation %ould e invalid face of the condition foriddin! revocation. The question %as considered in Duraisami v. Saroja %mmal The court pointed out that the real test to distin!uish et%een a !ift and a :ill %as %hether or not there transfer in #raesenti. In this case the e/ecutant reserved to hi"self a ri!ht in the property for his life ti" Sign to vote the on this title durin! the and, su)ect to this, !ave the property to A 6the plainti+7. A %as not toup alienate property e/ecutants life ti"e and the patta for the l and %as to continue in the na"e of the e/ecutant durin! his Useful to Not useful intended e/ecute lifeti"e. It %as concluded fro" these directions that the e/ecutant a settle"ent dee operative in #raesenti and so his susequent revocation %as invalid and the susequent alienee fro" hi could not acquire any title.
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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Jnder (usli" *a% a hiba0bil0e"a , a type of !ift %hich has an ele"ent of consideration is valid. 'o%eve under the Transfer of Property Act, 1882 a !ift %hich has any ele"ent of consideration is void. The hiba0 e"a is not considered as a !ift in India ut in lassical (oha""edan *a% a hiba0bil0e"a is a valid !ift
A donatio mortis causa or !ift "ade in conte"plation of death co"es %ithin the purvie% of Section 1&1 the Indian Succession Act, 1&20. A donatio mortis causa under (usli" *a% is no%n as a mar0ul0maut A mar0ul0maut satises the conditions of Section 1&1 of the Indian Succession Act, 1&20.#0F$ The only di+erence is that throu!h a mar0ul0maut a donor can !ift a%ay only one third of his estate and if he %is to e/ceed this li"it the prior consent of his heirs is necessary.
(oha""edan *a% allo%s oral !ifts %hereas the Transfer 4f Property Act, 1882 does not. 5e!istration is an essential ele"ent to e+ect transfer of a !ift under the Transfer of Property Act, 1882 %hereas under (usli" *a% 5e!istration of a !ift deed is not necessary. This di+erence is the "ain one of contention et%een the la% of !ifts under the Transfer of Property Act, 1882 and (oha""edan Gifts and has stirred a hu!e controversy %hich has even l ed to challen!in! the constitutionality of certain provisions of the Transfer of Property Act, 1882.
Section 12 of the Transfer of Property Act, 1882 lays do%n the "anner in %hich a !ift has to e e+ected prescries the need for a re!istered instru"ent si!ned y or on ehalf of the donor and attested y at t%o %itnesses if the su)ect "atter is i""ovale property.
Section 12& of the Transfer of Property Act, 1882 provides that =Hothin! in this chapter 6%hich deals %ith !ifts7M.shall e dee"ed to a+ect any rule of (oha""edan *a%.>
In &hulam %hmed Su2 v. Mohammed Sidi/ Dareel [5#] the ull @ench of the La""u and Nash"ir 'i!h o %as ased to "ae an = authoritative pronouncement> on the proposition of la% =if in vie% of section 12 and 12& of the Transfer of Property Act, 1882 the (usli" *a% on the question of !ifts stands supers and %hether it is necessary that there should eReading a re!istered instru"ent as required y sections 12 You're a Preview of the Transfer of Property Act, 1882 in the case of !ifts "ade under (usli" *a%. 4n a revie% of the case and a close e/a"ination of the %ordin! of section 12& of the Transfer of Property Act, 1882 the court Unlock full access with a free trial. ans%ered oth the questions in the ne!ative. It pronounced that Sections 12 and 12& of the Transfer of Property Act, 1882 did not supersede (usli" *a% relatin! to oral !ifts and that a re!istered instru"ent % not e necessary for a !ift under (usli" *a%. Accordin! to the court only if an instru"ent %as e/ecuted Trial its e/ecution %as conte"poraneous %ithDownload the "ain! With of theFree !ift, the instru"ent should e re!istered as provided in Section 1D of the Indian 5e!istration Act, 1&8. This decision of the court, %hich it called an authoritative pronounce"ent, %as a "ere restate"ent of %hat is undoutedly settled la% on the point issue. The court itself referred in its )ud!"ent to the identical decisions in several earlier cases of other courts %hich fortied its pronounce"ent.
In !ibi Maniran v. Mohammad (sha/ue [54] a ?ivi sion @ench of the Patna 'i!h ourt re)ected the ar!u" that Section 12& of the Transfer of Property Act, 1882 violated Article of vote the onstitutionE Sign 1C up to on this title the court he that the classication et%een (oha""edans and others %as reasonale, havin! re!ard to the %ell no Useful funda"ental di+erences et%een the reli!ion and custo"s of (oha""edans onNot oneuseful hand and the reli!i and custo"s of others.
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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so inti"ately connected that they cannot e readily dissevered fro" it. (oreover Lustice Nrishna Iyers classication of !ifts into reli!ious and secular !oes a!ainst the nor"s of interpretin! (usli" la% and if s classication %as adhered to it %ould shae the funda"entals of (usli" *a%.
It is of e/tre"e i"portance to loo at this controversy fro" another vie%point. 5e!istration of a !ift deed not an anti-reli!ious or sacrile!ious act. It does not interfere %ith the oservance of reli!ious rites. It ens a proper authentic record of the property transaction, %hich is ulti"ately enecial to the parties the"selves. As the (usli" )urists have the"selves acno%led!ed in their denitions, hiba is re!arded a part of the la% of contractE the concept of contract underscores the concept of hiba. Lust as other sales a contracts y (usli"s are su)ect to the civil la%s of the country, there is nothin! unusual in coverin! the transactions also under the ordinary civil la%s. The only !rud!e can e on account of the require"ent of re!istration fees ut no (oha""edan )urist has clai"ed or )ustied i""unity fro" secular ta/ation. An e/e"ption fro" so"e le!al for"alities should e clai"ed in such areas %here it is essential to eep inta reli!ious rites, cere"onies or oservances of essentially reli!ious character. Too "uch insistence on i""unities fro" !eneral la%s of the land reeds separatist tendencies. Instead of advancin! hair-splittin ar!u"ents to clai" i""unity, the (usli" society should %illin!ly co"e for%ard to clai" "a/i"u" inte!ration %ith the !eneral le!al syste" of the country. •
"onclusion
'avin! studied and co"pared the (oha""edan la% of !ifts and !ifts under the Transfer of Property Act 1882 it can e accurately said that the "ost si!nicant issue in India today re!ardin! the la% of !ifts is interpretation of Section 12& of the Transfer of Property Act, 1882 and the applicaility of the provisions the Act to the hiba or (oha""edan !ifts. The courts in India have upheld the constitutionality of Section of the Transfer of Property Act, 1882 and have interpreted it to "ean that the provisions of the Transfer o Property Act, 1882 shall not apply to (oha""edan !ifts and (oha""edan !ifts %ill e solely !overned the rules of (usli" la%. 'o%ever Lustice Nrishna Iyers )ud!"ent %hich has !one a!ainst the settled la% the land and held the Transfer of Property Act, 1882 to e applicale to (usli" !ifts of a secular nature h co"e under severe criticis" ut has raised questions too re!ardin! the har"ony of la%s relatin! to !ifts You're Reading a Preview
Unlock full access with a free trial.and if upheld %ould shae the Lustice Nrishna Iyers vie%s on the la% relatin! to !ifts are too drastic funda"entals of (usli" la%.
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The present situation of e/tre"e uncertainty overshado%in! the la% of hiba rin!s no credit to Indian )urisprudence. It creates !reat diculties and ha3ards for "usli"s desirin! to "ae dispositions of their property. It is thus dicult for la%yers to tender !ood advice to their clients or to tae sure step in conveyancin! !ifts.
An attitude of callous i ndi+erence, co"pounded %ith inadequate understandin! of a syste" of la% so"eti"es decried as outdated, has led so"e )ud!es, so"eti"es, to pass il l-considered )ud!"ents that Signad"inistration. up to vote on this title inicted needless in)ustice on parties and created confusion in le!al
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It is i"perative that this eld of la% e considered in !reat depth y the Supre"e ourt either in its app )urisdiction or upon a presidential 5eference under Article 1C of the onstitution, in order that clarity, certainty, and rationality, in the conte/t of the needs of conte"porary society, in accord %ith the innate
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Steelman v. US Bank, Ariz. Ct.
06 Resbusquillo vs. Gualvez, 725
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1.
Asaf A.A y3ee, 3utlines of Mohammedan 4a" 6?elhi9 4/ford Jniversity Press, 1&8D7.
2.
G. Oenatasua 5ao, $ommentary on the Transfer of ro#erty %ct 6(adras9 . Suiah Shetty Sons, 1&&7.
.
(. 'idayatullah and Arshad 'idayatullah, Mulla5s rinci#les of Mohammedan 4a" 6@o"ay9 H.( Tripathi private *i"ited, 1&&7.
C.
(ulla, Transfer of ro#erty %ct- 6778 Solil Paul ed. 6& th ed.7 6He% ?elhi9 @utter%orths, 27.
0.
Hishi Purohit, rinci#les of Mohammedan 4a" 6He% ?elhi9 4rient Pulishin! o"pany, 1&&87.
F.
Salil N. 5oycho%dhury and '.N Saharay, The (ndian Succession %ct- 698: 6@o"ay9 H.( Tripathi Private *i"ited, 1&&7.
D.
Syed Nhalid 5ashid, Muslim 4a" 6lucno%9 Kastern @oo o"pany, 1&&F7.
- See "ore at9 http9le!alsutra.co"8D!ifts-under-transfer-of-property-actQsthash.!SJ@?ea.dpuf
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