TABLE OF CONTENTS

Sr. CONTENT Page

No. No.

1. ABSTRACT 3

2 INTRODUCTION 3

3 RESEARCH QUESTION 4

4 RESEARCH METHODOLOGY 4

5 REVIEW OF LITERATURE 5

CONTENT ANALYSIS

6 5

CAN GIFTS BE REVOKED UNDER CERTAIN SPECIFIC CONDITIONS?

7 6

ANALYSIS AND CONCLUSION

8 10

BIBLIOGRAPHY

9 10
 A COMPARATIVE STUDY ON REVOCATION OF GIFTS IN
MUSLIM LAW AND TRANSFER OF PROPERTY ACT 1882

Abstract
A "gift" is defined as the voluntary and uncompensated gift of particular
existing movable or immovable properties from one person, called as the
donor, to the other, known as the donee, and acknowledged by or on behalf
of the donee by Section 122 of Transfer of Property Act. In general, Islamic
law does not discriminate amongst real & personal property, but it does
require that the corpus of the property and the usufruct in the property be
divided. Under English law, limited interests in regard to property are
distinct from events of estates. According to Islamic law, they only have
usufructuary rights (and not rights of ownership of any kind). Islamic law's
various schools all share the same core understanding of property &
ownership. In all of the schools, a restricted interest replaces the usufruct.
Hiba comes in a variety of forms. Among them are Ariya, Sadkah, Hiba bil
Iwaz, Hiba ba Shart ul Iwaz, Hiba bil mushaa, and Hiba bil Iwaz. Since
there is no universal civil code in India, the laws that apply will determine
how gifts of property are handled. We have the Civil Procedure Code, the
Transfer of Property Act, the Indian Succession Act, the Registration Act,
the Indian Majority Act, and the Guardianship Act. There are individual laws
in different localities. A condition that attempts to be imposed as part of a
property "gift" yet is incompatible with this total control is rejected as
objectionable. However, limited time interests may be developed inside the
property, and such limited time interests are subject to the dominion over
the corpus clause.

Introduction
A gift is typically seen as a transfer of property ownership where the giver
voluntarily effects the transfer without payment or other recompense. It will
fall under the category of movable property, therefore the parties may be
two live individuals or the transfer could only take place upon the death of
the transferor. The transfer is inter vivos when it occurs between two live
individuals, and it is known as testamentary when it occurs just after death
of the transferor. Only inter vivos transactions are referred to as gifts under
Section 5 of the Transfer of Property Act since testamentary transfers are
excluded from its purview. The donation will be canceled or declared void
by law if the key components aren't implemented correctly. Regarding the
gifts, numerous rules exist. Sections 122 through 129 of the Transfer of
Property Act dealing with gifts. A gift is the forceful and careless transfer of
specific existing movable or immovable property from one person, known as
the donor, to another, known as the Donee, and accepted on the donee
behal. Every property transfer will only be effective if both parties agree to
it. However, section 25 of the Indian Contract Act of 1872 makes an
exception for gifts. When a gift is an exemption to a contract or commitment
that was made carelessly. Under the transfer of property act it's essential
that a gift must be accepted by the done though it couldn't be necessary to
be expressly accepted.1

Research Question- 1. Can gifts be revoked under certain specific

conditions?

Research Methodology
Research Method
1. So basically this research is purely done on qualitative methods where
this qualitative method allows me to explore experience in more
detail.

1. AYUSHI MODI, 2020. All About Lease And Gift Under Transfer Of Property Act, 1882 By:
Ayushi Modi. [online] www.latestlaws.com. Available at:
https://www.latestlaws.com/articles/all-about-lease-and-gift-under-transfer-of-property-act-
1882-by-ayushi-modi
 2. So this research is conducted or done with the help of secondary
sources.

Sources- This research is based on secondary sources. Where this research

is written by referring Transfer of Property Act - Avatar Singh Transfer of
Property Act - R.K. Sinha books and some online articles and websites which
I have cited. These sources helped me to interpret and analyze the topic and
prepare the research thoroughly.

Research Method- so, the tools and procedures used in this research
paper are secondary sources and I have taken a few cases related to my
research to give a better understanding to the reader. And I have raised
some questions on this topic which I will be going through in the content
analysis part and try to answer it respectively.

Literature review
1. The common definition of a gift is the intended transfer of ownership
by the donor to the recipient without consideration of payment or
monetary value. It could be movable or immovable property, and the
parties could be two live people or the transfer could happen only
after the transferor’s demise. Inter vivos refers to transfers made
between two live parties, while testamentary refers to transfers made
after the death of the transferor. Only inter vivos transactions are
referred to as gifts under this act as section 5 of the transfer of
property act does not apply to testamentary transfers.
2. Wills and gifts are two examples of specific legal forms that are
employed when transferring property through one person to another.
Even though each of these documents serve the same functions, they
are distinct from one another. A will is more of a thoughtful procedure
that takes more time to prepare than a gift, that is more or less an
instant process.
 3. A gift is the transfer of property from one person to another without
the exchange of money which is accepted by the recipient or a
representative on behalf of them. Uncompensated transfers are
referred to as gratuitous transfers. A gratuitous transfer can take
place between two people who are still alive or only after the death of
the transferor. So, a gift can be given either before or after a person
passes away.

Content analysis
Parties in a gift transfer:

DONOR:

The donor has to be a capable individual, meaning he must possess the

capacity in addition to the legal authority to create the gift. The donor is
judged to have the ability to form the gift if he is able to establish contracts.
This implies that in order to create a present, the donor must be of legal age
and be of sound mind. As legal entities with the ability to create gifts,
registered societies, businesses, and institutions are mentioned. A minor's
or mad person's gift is invalid. The donor must not only be able, but also
have the authority to create a gift. Given that a gift is a transfer of
ownership, the donor's property is determined by his ownership stake in the
property at the time of transfer.

DONEE:

The contracting party need not be competent. He could also be a person

who was living on the day the gift was made. A gift given to a person who is
insane, a minor or even a baby still inside the mother’s womb is valid as
long as a competent adult accepts it legally on their behalf. Gifts made to
juristic individuals, such as firms, institutions, or companies, are considered
to be legal. However, the donee must be a person who can be located. The
present given to the public at large is worthless. The donee could be more
than one person, if such information is known.
Essential elements of valid gift:

These are the following five essentials of a valid gift:

● Transfer of ownership

● Existing property

● Transfer without consideration

● Voluntary transfer with free consent

● Acceptance of the gift

Can gifts be revoked under certain specific conditions?

A gift can only be revoked once the donor and donee have concurred that it
will be suspended or revoked in the event of any specific. The gift is void to
the extent that the parties consent that it should be withdrawn, whether
whole or partially, at the donor's mere will. The gift may also be withdrawn
in any situation where, if it were a contract, it might be (except for lack of
consideration) (for instance, misrepresentation for obtaining consent). A gift
cannot be canceled in any circumstance outside these two. The deed must
specifically state the condition. However, the condition will be enforceable
if it had been established separately under a mutual consent and was a part
of the gift transaction.

Section 126 lays down two modes of revocation of gift:

(i) Revocation by mutual agreement of donor and donee.

(ii) Revocation by rescission as in the case of contracts.

1)Revocation by mutual agreement of donor and donee- If an incident

occurs that is not in the donor's control, the donor and beneficiary may
decide that its donation will be stopped or put on hold. The requirement for
withdrawing the gift has to be explicit; it cannot just be a wish or desire. In
other words, the conditions that must be met in order for the donor to
revoke the gift must be stated explicitly in the donation. In place of the past
and future services provided to the donor, a gift of certain properties was
made. However, it was not stated that failure to provide services to the
donor or to retain the donor in the future would result in the gift deed being
revoked. As determined by the Himachal Pradesh High Court 2 The gift was
unconditional and could not be revoked by the donor because the condition
for revocation upon the donee's failure to perform services for the donor
was not stated in the deed. However a condition will be enforceable and
legal even if it is not mentioned in the gift deed itself and also was reached
subsequently but is still a competition of the gift transaction. However, even
if a condition is not stated in the gift deed proper and has been agreed upon
separately but is still a part of the gift transaction, the constraint would be
enforceable and lawful3. A gift's revocation requirements cannot be
determined merely by the donor's will. A gift that can be revoked at the
donor's discretion is not a gift at all. Revocation must be subject to a
condition or requirement that was mutually agreed upon when the donation
was made. If such an agreement is reached after the gift has been given, it
cannot be withdrawn because the present has already been final. However,
it is not required that the revocation clause be included in the actual gift
deed. The need is that the gift and stipulation be given simultaneously.The
succeeding criterion is the requirement for gift revocation. It must be valid
in accordance with the legal guidelines established for conditional transfers.
According to Section 10 of this Act, the restriction completely forbidding
the alienation of property is null and void. As a result, if the donation is
made revocable with such a condition, the gift is not revoked because the
condition is null and void4.

2 Mool Raj v. Jamma Devi, AIR 1995 HP 117.

3 Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340.
4 Jagdeo Singh v. Nandan Mahto, AIR 1982 Pat. 22
2)Revocation by rescission as in the case of contracts- A gift is a
willingly made, gratuitous transfer of ownership. The gift should be
canceled if it can be demonstrated that it wasn't given voluntarily, meaning
the donor's assent wasn't given freely. A gift is always preceded by a verbal
or implied contract; the donor makes the offer, and the recipient accepts it.
There is no doubt that the transfer (gift) performed under the prior
agreement will take effect if the agreement itself is revoked. As a result,
under Section 126, a gift may be withdrawn for any reason that would allow
for the cancellation of a contract. A contract is voidable at the discretion of
said party whose assent was gained under section 19 of the Indian contract
act if it was made under duress, undue influence, fraud,
misrepresentation.Therefore, the donor has the right to rescind the gift if it
was not given voluntarily due to one of the aforementioned reasons. It
should be emphasized that this section only addresses revocation, which is
the revocation or rejection of a donation; it does not address situations in
which the gift is invalid, such as when the donor's tide is missing.
Therefore, the donor has the opportunity to repudiate or withdraw the
donation in cases when the donor's permission was obtained through
coercion, undue influence, fraud, or deception. The gift is not canceled if he
decides not to use this option. Only the donor has the authority to revoke a
gift for the aforementioned reasons; he is not permitted to transfer this
authority to anybody else. However, following the donor’s death, his legal
heirs may bring a legal action to have the gift revoked based on any of these
grounds.

3)Transferee for Consideration without Notice- The interest of a

bonafide transferee for consideration without notification of the donor's
right of revocation is protected by the last sentence of Section 126 of the
Act. For instance, if A gives B his house with the caveat that if B's son does
not pursue legal studies after graduation, A will rescind the gift. B gives C
the house. C is not aware of any such occurrence. After graduating, B's son
decides against enrolling in law school. Due to the fact that C's interest will
be impacted, A cannot rescind the donation. A might have canceled the gift
if C knew about the condition or that C was the recipient of a gratuitous
transfer.

4) No Revocation on any other ground- A gift cannot be canceled for

any reason other than (a) a condition that follows that is independent of the
donor’s pleasure and (b) the reasons that support a contract. A legitimate
gift deed was executed in the donee’s favor. It was decided that the donor’s
concurrent assertion that the gift deed had been unilaterally canceled by
him and filed for registration was invalid because the donee had not
participated5.

Revocation of Gift under Muslim Law- In cases when both parties are
Muslims, the Transfer of Property Act is not applicable since it conflicts
with the rules of the Quranic Law, commonly known as Mohammedan Law,
which governs gifts. Apart from in the following circumstances, a
Mohammedan can cancel a gift even after it has been delivered in
possession.

1. When a husband presents a gift to his wife or when a wife presents a

gift to her husband.
2. When the donee and donor are related to an unlawful degree;
3. if the present is a Sadaka (i.e., made to a charity or for any religious
purpose).
4. after the donee's passing;
5. when the given item has been sold, gifted, or otherwise removed from
the donee's possession.
6. if the gift is misplaced or destroyed;
7. Whenever the value of the gift has increased, regardless of the reason
for the increase.

5 Sheel Arora v. Madan Mohan Bajaj, AIR 2009 NOC 333 (Bom)
 8. When the thing given has undergone such a transformation that it can
no longer be recognised, example: when wheat has been ground to
flour.
9. After the gift has been exchanged for something else.

Except in those circumstances, a gift could be canceled at the donor’s

simple request, regardless of whether he has reserved the right to do so.
However the revocation requires a court order.

Analysis and Conclusion

The transfer of property act lays down various rules and regulations
governing a property. Similarly the laws governing a property which is
given as a gift are also laid down. For a property to be given as a gift the
most essential requirement is its acceptance. The donee must accept the
gift given and it must be given during the lifetime of a person, and in a
situation when he/she is capable to do so. The law also lays down a
mandatory requirement to register a gift. Without registration a gift deed is
considered to be invalid. However the essentials of gift under the Property
law and Muslim law differ and so do the procedure to revoke it. Muslim law
lays down a wider set of aspects in which a gift can be revoked even after it
has been accepted by the other party. However under property law
rescission is possible only under 2 situations and those must be done by
both the parties through mutual agreement.

Thus this paper has helped in gaining a clear understanding about the
concept of gifting as well as its modes of revocation. Revocation is defined
through clearly laid down rules and anything in violation of these rules
would be treated as a invalid gift. However under muslim law, it is all based
on the personal laws and there are no written rules governing the same.
Thus when a gift is made under these laws different aspects govern them
and it is upon the judges to understand and interpret them while deciding if
a revocation is valid or invalid.
Bibliography
Books
● Transfer of Property Act - Avatar Singh
● Transfer of Property Act - R.K. Sinha

Case laws
● Mool Raj v. Jamma Devi, AIR 1995 HP 117
● Thakur Raghunathjee Maharaj v. Ramesh Chandra, AIR 2001 SC 2340
● Jagdeo Singh v. Nandan Mahto, AIR 1982 Pat. 22
● Gomti Bai v. Mattulal, [AIR 1997 SC 127]
● Sheel Arora v. Madan Mohan Bajaj, AIR 2009 NOC 333 (Bom)

Online Websites

● https://www.legalserviceindia.com/legal/article-5901-concept-
of-revocation-of-gift.html
● https://blog.ipleaders.in/concept-of-gift-under-the-transfer-of-
property-act-1882/
● https://economictimes.indiatimes.com/wealth/legal/will/can-a-
property-transferred-via-gift-deed-be-taken-back-by-the-giver/
articleshow/93629910.cms
● https://www.lawyersclubindia.com/articles/gift-under-transfer-
of-property-act-legal-provisions-important-case-laws-15012.asp