GIFT AND ONEROUS GIFT:
LEGAL BOUNDARIES AND PRACTICAL
IMPLICATIONS IN TPA
INTEGRAL UNIVERSITY LUCKNOW
FACULTY OF LAW
COURSE: LAW OF PROPERTY (LW-369)
SESSION: 2024-25
SUBMITTED BY:
AREESHA AAFREEN SUBMITTED TO:
Enrollment No: 2200100935 MR. FAIZ OSMANI
Course: B.A. LL.B (3rd Year) (ASSISTANT PROFESSOR)
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ACKNOWLEDGEMENT
First of all, I bow in reverence to the Almighty for blessing me with strong will power,
patience and confidence, which helped me in completing the present work.
I am writing to express my sincere gratitude to Prof. (Dr.) Naseem Ahmed (Dean ,
Faculty of Law) for the support and guidance provided during the process of writing
my recent article. Your encouragement and feedback have been invaluable in shaping
my understanding of legal research and writing.
I would also like to extend my appreciation to Dr. Seema Siddiqui (Head of
Department) for creating an environment that fosters academic growth and critical
thinking. Your leadership has inspired me to delve deeper into legal discourse and
explore new avenues of legal analysis.
Furthermore, I am grateful to my course teacher Mr. Faiz Osmani (Assistant
Professor), for their expertise and dedication in guiding me through the intricacies of
legal writing. Their insightful feedback and constructive criticism have significantly
enhanced the quality of my work.
I am proud to have had the opportunity to contribute to the legal literature under your
mentorship, and I look forward to applying the skills and knowledge gained from this
experience in my future endeavors.
Thank you once again for your continuous support and belief in my academic pursuits.
AREESHA AAFREEN
B.A. LL.B
2200100935
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TABLE OF CONTENT
S. NO. TITLE PAGE NO.
1. Introduction 4
2. Meaning and Definition 5
3. Essential Elements of Gift 5-8
4. Modes of Transfer 8-9
5. Onerous Gift 9-12
6. Conclusion 12
7. References 13-14
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GIFT AND ONEROUS GIFT:
LEGAL BOUNDARIES AND PRACTICAL IMPLICATIONS IN TPA
I. INTRODUCTION
The Transfer of Property Act 1882 is an Indian legislation which regulates the transfer of
property in India. It contains specific provisions regarding what constitutes a transfer and the
conditions attached to it.1
According to the Act, ‘transfer of property’ means an act by which a person conveys the property
to one or more persons, or himself and one or more other persons. The act of transfer may be
done in the present or for the future. The person may include an individual, company or
association or body of individuals, and any kind of property may be transferred, including the
transfer of immovable property.
The object of the Transfer of Property Act is to define and amend law relating to Transfer of
Property by act of parties and not to transfer by operation of law. A Transfer of Property is a
contract hence all necessary requirements to constitute valid contract are to be fulfilled.
The Act contemplates the following kinds of transfers: Sale, Mortgage, Lease Exchange, and
Gift. Sale is an out-and-out transfer of property. In mortgage, there is a transfer of limited interest
in property. A lease is a transfer of a right to enjoy immovable property for a certain time or in
perpetuity. Exchange is like a sale, but differs from it as regards the consideration. In sale, the
consideration is money, while in exchange, the consideration is another thing. In a gift, there is
no consideration.
A gift is generally considered as the exchange or transfer of ownership of any property from one
person to another where the sender willingly transfers his/her property to the receiver without
any compensation i.e., without considering any monetary value. A gift is often called a form of
reward. It may be given by sender to receiver during any events like Weeding Ceremony,
Birthday Party etc.
1
Transfer of Property Act, Section 5
4
II. MEANING AND DEFINITION
The term "Gift" is considered as the transfer of property in the eye of law. Without proper giving
and taking process between donor and done, the legal aspects of a gift will be collapsed.
According to Section 122 of Transfer of Property Act, 1882 "A Gift is the transfer of certain
existing movable or immovable property made voluntarily and without consideration, by one
person, called the donor or guarantor or sender, to another, called the donor, and accepted
by or on behalf of the donee or guarantee or receiver.2" Any gift may be void and suspended
if the rules and regulations of giving and taking a gift are not observed properly. For Example:
If the receiver or donee of any gift dies before. accepting it although the sender or donor have
done proper intention and delivery to give that gift to the donee then that gift may be void by
law because of lack of acceptance of the done.
Every transfer of property will take effect only when it is considered by both the parties. 3
However, gift is an exception to section 25 of Indian Contract Act, 1872. Where a contract or
an agreement without consideration is void to which gift is an exception. Gift is transfer of both
existing movable and immovable property with the transfer of ownership without consideration.
A gift can only be made in favour of an ascertainable person means it cannot be in favour of an
idol or public. Under the transfer of property act it is essential that gift must be accepted by the
done though it could not be necessary to be expressly accepted..
III. ESSENTIAL ELEMENTS OF GIFT
1. Absence of Consideration:
A gift should be legally approved when the donor or guarantor gives the gift to the donee or
guarantee without any consideration i.e., without taking any compensation or monetary value. It
2
Transfer of Property Act, Section 122
3
Indian Contract Act 1872, Section 25
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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.
This is an absolutely important requirement that the transfer must occur without any
consideration. Even a negligible property or very small sum of money given by the transferee in
consideration of a transfer of ownership in a big property would make the transfer either sale or
exchange. The consideration must be pecuniary. Mutual love and affection is not is not a
pecuniary consideration. Property transferred in consideration of love or affection is a transfer
without consideration, and hence a gift. 4
2. Gift must be given voluntarily:
In this section the word ‘voluntarily bears its ordinary popular meaning. It denoting the exercise
of the unfettered free will, and not its technical meaning of ‘without consideration’. When a gift
is made, it must satisfactorily appear that the donor knew what he was doing and understood the
contents of the instrument and its effect, and also that undue influence or pressure was not
exercised upon clear intention to make an out-and-out gift, but the intention has failed for want
of transfer or any other cause, the courts will not convert what was meant to be an out-and-out
gift into a trust, and the donor will not be deemed a trustee of the property for the intended donee.
The gift will fail.
Where the husband deposited certain ornaments with a bank for safe custody in the joint names
of himself and his wife, with direction to be delivered to be either or survivor, it did not amount
to a gift, as the husband retained dominion over the property. Where a person keeps money to
4
Munni Devi v. Chhoti, AIR 1983 All, 444
6
fixed deposit in the name of his niece, brought up and given in marriage by him, there is an
inference of gift in favour of the niece. The burden of proving that the gift was made voluntarily
with free consent of donor, lies on the donee.” 5
3. Acceptance of Gift:
The gift must be accepted by the donee or by someone on his behalf. An offer without acceptance
by the donee cannot complete the gift. Acceptance may be inferred from acts prior to the
execution of the deed of gift. Mere silence may sometimes indicate acceptance provided the
donee knows about the gift, slightest evidence of acceptance being sufficient.6
Even when a gift is made by a registered instrument, the same has to be accepted by or on behalf
of the donee to make it complete, failing which the gift will be bad, because it so provides in
sec. 122. What the law requires is acceptance of the gift after its execution, though the deed may
not be registered. Anterior negotiations or talks about. The gift would not amount to acceptance.
Person accepting gift on behalf of the minors appended his thumb-impression on the deed in
token of acceptance. It was held that the gift was complete. Acceptance must be essentially made
before the death of the donor. There must be something shown to indicate an acceptance.
4. Existing Property:
Gift must be made of existing movable or Immovable property and the same should be capable
of being transferred. The property which is to be acquired by the donor in future. Cannot be
transferred therefore the donor can transfer only that property of which he is the absolute owner
5
Ajmer Singh v. Aatma Singh, AIR1985 P&H 315
6
Indrasan Singh v. Yudhishtir Singh, AIR 2008 NOC 1649
7
and the property which is in existence on the day of transfer by way of gift by the donor to the
donee.
5. Parties:
There are two parties to the transfer of property by the mode of Gift. The person who makes the
gift is called “donor” and the person in whose favour the gift is made is called the “donee”.
Moreover, the donor should be competent to make a gift. A person who is not competent to
contract cannot gift his property. It has been further held that a guardian of the property of a
minor cannot make a transfer of the property without the permission of the court and if he
exceeds his power by executing a gift of the property of minor then the same would be void. The
donor must be either the owner of the property or be should be authorized by the owner to
execute a valid gift of the property, otherwise the gift would be invalid. Hon’ble Supreme Court
has held that donee can even be a minor. 7
IV. MODES OF TRANSFER
Section 123 of the Transfer of property Act provides for the requirements that are essential for
completion of a gift. Unless and until these legal requirements are not met with, the done has no
legal title as regards property gifted by donor and consequently the gift is not enforceable by
law. This section provides for two modes for making a gift, depending upon the nature of the
property. In case of gift of movable property, the gift can be effected by delivery of possession
of the same, whereas in case of immovable property, registration is essential for transfer of an
immovable property by way of a gift.
7
K. Balakrishnan v. K. Kamalam, AIR 2004 SC 1257
8
• Movable Property:
The registration for the gift of an immovable property is essential irrespective of its valuation.
The Supreme Court has held that in the absence of written instrument executed by donor,
attestation by two witnesses, registration of the same and acceptance thereof by the donee, the
gift of immovable property is not complete.
• Immovable Property:
In case of gift of movable properties, registration is not compulsory rather the same is optional.
The gift of movable property is completed by delivery of the possession of the gifted property.
As per Section 33 of the sale of Goods Act, 1930 the mode of delivering the property to the
donee depends upon the nature of the property. The only requirement is that the donee should
get the title as well as the possession of the gifted property in case of movable property.
V. ONEROUS GIFT
Section 127 of Transfer of Property Act, 1882 states: Onerous gifts, where a gift is in the form
of a single transfer to the same person of several things of which one is, and the others are not
burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person
of several things, the donee is at liberty to accept one of them and refuse the others, although the
former may be beneficial and the latter onerous.
Onerous gift to disqualified person an onerous gift are often accepted by an individual
incompetent to contract, without the intervention of a guardian. If at the time of gift of a
burdened property the donee happened to be a disqualified person viz., a minor, i.e., person
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incompetent to contract, the vesting of property in him shall not be postponed. He will become
entitled to carry the property directly but his acceptance shall not be final. He features a right to
repudiate the gift on attaining the age of majority. He will have option either to simply accept or
to refuse gift on attaining majority. The gift doesn’t become binding on him unless on attaining
majority he ratifies the acceptance. If on attaining majority, he retain the property, with the
knowledge of the burden he are going to be bound by the burden because it is an implied
acceptance of the gift.
It must, however, be kept in mind that the gift is complete against the donor as soon because it
is accepted by the donee, and he will haven’t any right to revoke an equivalent during the
minority of the donee. Donor cannot take back the property unless the minor on attaining
majority rejects the gift at his option. And if the donee dies during his minority, the property
shall expire to the legal heirs of the donee, the donor cannot revoke the gift as being de
Incomplete. The gift is complete as soon because it has been accepted and cannot be abeyant
until the donee attains the age of majority.
MAXIM:
Onerous Gift is given under section 127 of Transfer of Property Act. Onerous Gift is based on
the maxim “quis sentit commodum sentire debet et onus.” It literally means that he who enjoys
the benefit ought also to bear the burden; he who enjoys the advantage of a right should also
take the accompanying disadvantage.
MEANING:
Onerous means “burdened with obligation”. Obligation here means debt, interest etc on the
property. Gift is defined under section 122 which means transfer of existing immovable or
movable property without consideration.
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So, Onerous gift is when one person transfer several gifts, i.e., more than one gifts to another in
a single transfer, out of these gifts one is not burdened by obligation but other is burdened with
obligation, so here donee has to accept in full, he cannot accept one which is beneficial and reject
burdened with obligation.
But where gift is in the form of two or more separate and independent gifts to same person off
several things, then donee can accept one and reject other because the gift is not in single transfer
but independent transfer.
CASES:
1. Subramania Ayyar v. Sitha Lakahmi: 8 The Subordinate Judge has found as an
incontrovertible fact that the property given was delivered to and accepted by the deceased
minor, wife of the plain tiff, who now sues for the property given. It’s contended before us
that inasmuch because the deed of gift imposed an obligation on the donee and therefore the
donee died a minor, there’s no complete gift which binds the donor. We think the gift is
complete. Section 127 of the Transfer of Property Act, 1882, grants the minor the ‘right to
repudiate’ on attaining majority; such repudiation became impossible within the present case.
The Subordinate Judge’s decision is correct. Thus, second appeal missed the mark and was
dismissed with costs.
2. Panna Lal v. Fulmoni9: In this case Calcutta H.C. held that a condition within the deed of
gift whereby properties were transferred to the son by his deceased father, to supply
maintenance to his decendants, isn’t in any way repugnant to the interest created by the
instrument and therefore the condition is valid and enforceable and not hit by the provisions
8
Subramania Ayyar v. Sitha Lakahmi, (1897)ILR 20MAD147
9
Panna Lal v. Fulmoni, AIR 1986 Cal 106
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of Section 11. Therefore, it had been held that the son was susceptible to maintain his step-
mother under the express terms of the gift deed.
VI. CONCLUSION
When a person acquires or owns an immovable property, the law also give him/her the right to
use, lease, sell, rent or transfer/gift of the land. The owner also has a right to mortgage his
immovable property as a security for loans. However, there are some laws which restrict the
type of use a land can be put to, e.g., a land may be used only for residential or commercial
purposes to prevent haphazard/unorganized growth of cities and towns. Laws in some of the
States prevent/restrict outsiders from acquiring property within the State. Restrictions are also
placed on non-agriculturists from acquiring agricultural land.
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.. In considering the law of gifts,
it is to be remembered that the English word ‘gift’ is generic and must not be confused with the
technical term of Islamic law, hiba. The concept of hiba and the term “gift as used in the transfer
of property act, are different. The English law as to rights in property is classified by a division
on the basis of immoveable and moveable (real and personal) property. The essential elements
of a gift are (a) The absence of consideration; (b) the donor; (c) the donee (d) the subject-matter;
(e) the transfer, and the acceptance.
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REFERENCES
• CASES REFERRED
1. Ajmer Singh v. Aatma Singh, AIR1985 P&H 315
2. Indrasan Singh v. Yudhishtir Singh, AIR 2008 NOC 1649
3. K. Balakrishnan v. K. Kamalam, AIR 2004 SC 1257
4. Munni Devi v. Chhoti, AIR 1983 All, 444
5. Panna Lal v. Fulmoni, AIR 1986 Cal 106
6. Subramania Ayyar v. Sitha Lakahmi, (1897)ILR 20MAD147 (1897)ILR 20MAD147
• BOOKS REFERRED
1. Dr. Saxena Poonam Pradhan, Property Law, (2 edn. Lexis Nexis 2011) 178
2. Vishwas Shridhar Sohoni, Transfer of Property Act (4”edn, Premier Publishing Company
2012) 184
• STATUTES REFERRED
1. Indian Contract Act, 1872
2. Transfer of Property Act, 1882
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• E-RESOURCES
1. Aishwarya Agarwal, Onerous Gifts under Transfer of Property Act. Accessed at:
https://lawbhoomi.com/onerous-gifts/ (accessed on March 25th, 2025).
2. Ananya Garg, Concept of Gifts under Transfer of Property Act, 1882. Accessed at:
https://blog.ipleaders.in/concept-of-gift-under-the-transfer-of-property-act-1882/
(accessed on March 26th, 2025).
3. Gifts under Transfer of Property Act, 1882. Accessed at:
https://www.drishtijudiciary.com/ttp-transfer-of-property-
act/Gifts%20under%20Transfer%20of%20Property%20Act%2C%201882 (accessed on
March 27th, 2025).
• DATABASES AND WEBSITES
1. https://www.drishtiias.com/
2. http://www.scribd.com
3. http://www.legalserviceindia.com
4. http://www.lexisnexis.com/in/legal
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