GIFT
To begin with, it may be necessary to dwell on the concept of gift as contemplated by the Transfer of Property Act and as defined in various legal dictionaries and books. To start with, Black's Law Dictionary (Fourth Edition) defines gift thus:-
"A 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, from one person to another made gratuitously, and not upon any consideration of blood or money."
A similar definition has been given in Webster's Third New International Dictionary (Unabridged) where the author defines gift thus:
"Something that is voluntarily transferred by one person to another without compensation; a voluntary transfer of real or personal property without any consideration or without a valuable consideration- distinguished from sale."
(Emphasis ours)
Volume 18 of Words & Phrases (Permanent Edition) defines gift thus:"A 'gift' is a voluntary transfer of property without compensation or any consideration. A 'gift' means a voluntary transfer of property from one person to another without consideration or compensation." (Emphasis ours)
In Halsbury's Laws of England (Third Edition-Volume 18) while detailing the nature and kinds of gift, the following statement is made:
"A gift inter vivos (a) may be defined shortly as the transfer of any property from one person to another gratuitously. Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent."
Thus, according to Lord Halsbury's statement the essential distinction between a gift and a grant is that whereas a gift is absolutely gratuitous, grant is based on some consideration or equivalent. Similarly in Volume 38 of Corpus Juris Secundum, it has been clearly stated that a gift is a transfer without consideration and in this connection while defining the nature and character of a gift the author states as follows:
"A gift is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefor. Any piece of property which is voluntarily transferred by one person to another without compensation or consideration. A gift is a gratuity, and an act of generosity, and not only does not require a consideration but there can be none; if there is a consideration for the transaction it is not a gift."
Supreme Court of India Ku. Sonia Bhatia vs State Of U.P. & Ors on 17 March, 1981 Equivalent citations: 1981 SCR (3) 239, 1981 SCC (2) 585
1. Under section 122 of the Transfer of Property Act, gift is defined thus:
"'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.
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, s. 122 of the Transfer of Property Act clearly postulates that a gift must have two essential characteristics-(1) that it must be made voluntarily, and (2) that it should be without consideration. This is apart from the other ingredients like acceptance, etc.
Attestation:
. Under Section 3 of the Transfer of Property Act to attest is to bear witness to a fact. The essential conditions of a valid attestation, under Section 3 of the T. P. Act are; (1) Two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them, has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e. g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.Rajasthan High Court Pyare Mohan vs Smt. Narayani on 19 February, 1981 Equivalent citations: AIR 1982 Raj 43, 1981 WLN 616
Mohammedan law- Essential requirements of valid gift.
NOTE: Definition of consideration - The definition of consideration given in various books. Black's Law Dictionary defines 'consideration' thus:
"Consideration" is not to be confounded with motive. Consideration means something which is of value in the eye of the law, moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant"."
Webster's Third New International Dictionary (Unabridged) defines, consideration' thus: "Something that is legally regarded as the equivalent or return given or suffered by one for the act or promise of another."
The term 'consideration' and its legal significance has been clearly summed up in s. 2(d) of the Contract Act which defines 'consideration' thus: "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."
The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam Sir John Edge said :
"For a valid gift inter vivos under the Mahomedan law applicable in this case, three conditions are necessary, which, their Lordships consider have been correctly stated thus (a) manifestation of the wish to giveon the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively' (Mahomedan Law, by Syed Ameer Ali, 4th ed. vol. i, p. 41)."
The Prophet has said : "A gift is not valid without seisin."
The rule of law is :
(1) (1922) L. R. 49 1. A,, 195,209.
484
"Gifts are rendered valid by tender, acceptance and' seisin.-Tender and acceptance are necessary because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamilton's Hedaya (Grady's Edn), p. 482] Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdoer) .,or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullic Abdool Guffoor V. Muleka (1). But the view now prevails that there can be a valid :gift of property in the possession of a lessee or, a mortgagee and a .gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. 'Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. In Mahomed Buksh Khan v. Hosseini Bibi(2), Lord Macnaghten -said :
"In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold und
er these
circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at the time."