 Good evening, friends. Good evening, one and all. And we are back with the part two of general principles of the gift, which is primarily Delta in section 124 to 129 of the Transfer of Property Act. And there couldn't be a better speaker who can make us understand the nuances of the gift and what are the principles which have been culled out with the flux of time. This is Ramakrishna has already taken one of the sessions on the part one, that is the general principles of gift, more and all revolving under section 124 to 129. Since the session was long, we had planned to divide it into two parts. Being a weekend, we understand that people who are actually loving the legal knowledge understanding are logging with us and audio, sir. Thank you, guys. And good evening, everyone. Sorry for the inconvenience caused because of the power failure in Kerala due to the rain. I'll, in order to have the continuity and other thing, it is better that I can continue in the beginning, start from the beginning itself. The last session, we have dealt with a gift in general, that is section 122 and how the gift can be made, section 123 of the Transfer Property Act. As you are aware, a gift is a voluntary transfer made without any consideration of both movable and remote properties in existing, that is in presently, belonging to the donor to a person called Dhoni. And it must be a voluntary transfer and without consideration. These are all the two ingredients for the validity of the gift gust. If there is any condition imposed, restraining the right of the parties to do it or not to do it, or it is repellent to the very purpose of the gift itself, the gift is invalid. And if it is with consideration, it will have the other nuances of the transfer, either it may be by way of sale or it may be by way of mortgage or it may be by way of grant or lease, something like that. But gift is a one just like a will. Will also, there is no consideration. But will, as far as the will is concerned, it will take effect only after death of the testator. During the lifetime, he can revoke it at any time and the last will only prevail. That is the general principle as regards the will is concerned. As far as the gift is concerned, once the gift is granted and it is accepted, then it can be revoked only if there is a condition imposed or subject to section 126 of the Transfer Property Act. And the gift will not be accepted by the donor or on his behalf. And it must be accepted during the lifetime as a donor. And during the lifetime, during the time at which the donor is capable of giving it. That is, he must be capable of contract, having some disposed with the mind. And he is also not affected by any disabilities. Legal disability is not the other disability, legal disability, not the physical disability. As regards the effecting the gift is concerned, section 123 says that in the case of any more property, it can be by a registered document signed by the donor or on his behalf. There is a power of attorney if it is given for that purpose that can be done. And attested by two or more witnesses. It is very important because it must be attested by two or more witnesses. It is a compulsory, attestable document. And compulsory, a registrable document. And it must be accepted by the donor, donor or on his behalf. But in the case of a movable property, registration is not compulsory. But it can be effected either morally or it is by a registered document as well. Once a registered document is there, then you will have to comply with subsection 1 of section 126 of the, 123 of the transfer property act. So, it must be attested, it must be registered. It must be attested by two or more witnesses. So, once and in the case of a movable property, the transfer must be affected as in the case of sale of goods. How the goods will be delivered to the person and how it will be accepted. So, the complete delivery of the movable property is necessary for that purpose. So, this is the way in which the gift, general definition of gift and how it will be effected. Now, we are dealing with the other part of the transfer property act deals with gift. Section 124 to 129 of the transfer property act. We will deal with 126 later how it can be revoked and what are the conditions under which it can be revoked. Section 124 of the transfer property acts deals with a gift existing of existing and future property. A gift comprising of both existing and future property is void as to the later because as you are aware that a gift can be made in respect of a property in presently. It must be available for delivery. It must be available. It must over which the donor has got right to dispose. It must have a wastage of interest in the donate immediately. If that is not possible then there is no gift in respect of that portion. So, that was reason with the section says that in case where the gift is made in respect of both existing and future property it is not totally void but it will be void only to the extent of the future property in respect of which which will not give the gift will not come into effect. Section 125 of the transfer property act deals with gift to several persons of whom one does not accept. A gift of a thing to two or more donors of whom one does not accept it is void as to the interest which he would have taken had been accepted. So, in a case where a property has been gifted to more than one person or several persons and if one of them did not accept it then the gift is not totally void. It will be void only to it will not take into effect only to the extent of the interest of the person who has not accepted the gift. And by virtue of non acceptance of that portion of the gift by the person to whom it was given and who refused to accept it it will not turn back to the other persons they will not get benefit of that because the invention of the donor is very specific and certain as to what is the nature of interest to be transferred in favor of the donor and the donors will not get water water more than what was indented by the donor is the principle behind this section. Section 127 of the transfer property act deals with owner's gift that means a gift burdened with liability where a gift is in a gift is in the form of a single transfer to the same person of several things of which one is and other are not burdened with obligation or liability then the donor can take nothing by the gift unless he accepts it fully where the gift is in the form of two or more separate and independent transfer to the same person of several things the donor need at liberty to accept one of the one of them which is without liability and refused to take the other which is not beneficial to him in the case of a disqualified person the donor not competent to contract and accepting property not bound by any obligation by its acceptance but after becoming competent to contract and having aware of the obligation he retains the property given then he is bound by the obligation there are two illustrations given there illustration is is is having hairs in two companies with one having prosperity and other which is having prosperous nature and other difficulties and if the gift has been made in respect of both in favor of the unless we access both he cannot the gift will not come in effect because it is by a same same transaction same document it has been done but in the in the case where a transaction of lease with more liability than the value of the house or normally the rent will have to be payable for that and you will have to pay more rent and also by virtue of another document a gift has been made in respect of portion some portion of money without any obligation then since it is a separate and independent document the donor is at option is having an option to accept the gift which is without any obligation and reject the other so that and in respect of the gift that has been without obligation is valid and other reasons is rejecting it will not take into it will not come into effect so it is clear from this that in a case where the donor wants to give his properties with or without obligation by virtue of a single transaction to the same person which is a different person position will be different if in respect of the same person then unless the donor accepts both he will not get anything because he cannot have the option of election of accepting one and rejecting the other but in the case of in the case where the gift is made by different documents separate and independent documents containing the transactions one in respect of a property burdened with the liability and one without any liability the donor will be getting an option either to accept the both or accept one the reject but even really because he has not accepted the property with obligation will not desandite him from accepting the property which is beneficial to him so that is clear from the illustration itself because illustration A says he is having shares in two or more companies and he is gifting the property shares which is prosperous in nature and also with the liabilities and with the difficulties to enforce it by virtue of the same transaction to the same person then the illustration says unless the B accepts the donor accepts both he will not accept the beneficial one so he will have to get the benefit of the transaction or the gift he will have to accept both he will have to accept the liability as well otherwise he will not get but at the same time an illustration B says a lease of a property of a house with the liability to be rent which is more than the rent payable for a house of that nature and he is also gifting an amount of his 10,000 to be by a separate documents then the dynamic can accept the amount and refuse to accept the lease because it is not beneficial to him and merely because he is accepting the gift which is beneficial to him will not desandite him he is not accepting the gift which is not beneficial to him will not desandite him by accepting the other which is beneficial to him because it is two separate documents it's 2 separate transactions it can be independently dealt with by the Treasury. Section 128 of the Transfer of Property Act deals with universal donning which says subject to the provisions of section 127 because we read with section 127 as the owner's gift. One thing I have mentioned because in the case of a person disabled, even in the case of an owner's gift, the person under disability is not bound by the obligation or liability even though he accepts the gift because at that time he is not having the capacity to give consent. So, in such cases, the person under disability can enjoy the property without obligation but that will cease when he ceases the liability ceases. Once the liability ceases and he is aware of the obligation that has been created by virtue of the document and he retains the property for himself and enjoys it, then he is bound by the obligation that has been created by virtue of the document. So, it is clear from this that a person under disability is always having a right to accept or not to accept after the period of liability, the disability disappears and that will all be done within a reasonable period if it is not done and he is accepting, he is aware of the obligations made and he is retaining the property, then he will be bound by the obligations that has been made there because the cessation of liability will be there only during the existence of the, during the period of the disability and not otherwise. Section 128 of the Transfer of Property Act deals with universal donor. Subject to provisions of section 127 where a gift consists of the donor's whole property, the donor is personally liable for all the debts due by the liability due, due by and the liabilities of the donor at the time of gift to the extent of the property comprised layering. So, it is clear from this once a universal donor because here also the acceptance is required because gift is coming to effect only if he accepts it. As far as the owner universal donor is concerned once he accepts it, it is in respect of the entire property is being given by the donor with liability and without liability and there are liabilities which may be more than the value that has been given but once the donor accepts it then he is bound by the liability created as for the document, he is personally liable for the debt and there is a limitation provided to the extent of the value of the property that is he will not be personally liable for the entire debt only to send. That alone will be, that alone will be coming to effect for that purpose and he will be liable only to that extent and not more than that. See there was one decision which says see in one case that is Sheikh Fatima versus Mrs. Venkata Chalapathy Finance Corporation AR 1978 Enterprise 401 where the donor had executed a gift deed in respect of all his properties except the salary as a teacher or some employment he is having and there was a condensation, the financial part of the the finance company has filed a suit for recovery amount making the universal donor also a part of the proceedings and he condended that since the entire property has not been given to me he has retained some portion of the property that is the salary. It cannot be said to be a universal, I cannot be said to be a universal donor, you can realize the amount from the salary that has been drawn by the donor. But the court said no because the as for the salary is concerned you are aware it is a recurring amount that is being payable to the person and it is not a it is not a transferable right. We cannot transfer the salary to some other person so if it is not a transferable one then whatever possible transferable properties with the donor has already been transferred by virtue of this that has been accepted with the donor so the donor cannot now claim absolve absolving from the liability of payment of the debts to the extent of the property that has been given and the court held that he was liable and also the same decision says that even in the case of after the death of the university donor who made the universal you make the universal donor as a gift to in favor of the donor then he will be getting into the shoes of the donor as a legal representative not as a legal heir but a legal representative who is entitled to manage the property or intermittent with the property because all of you are aware the difference between a heir and the legal representative. Here includes the the here includes a legal representative but legal representative the legal representative need not be a heir because in the case of a legatee legatee need not be a heir of the testator but by virtue of the legatee he becomes a legal representative entitled to intermittent with by virtue of the definition of the legal representative under this court of school procedure he can be made party and he can be made responsible for the liabilities of the deceased person to the extent as mentioned in the section because he will be getting into the shoes as a legal representative not as a legal heir but legal representative and he will be liable for that extent and even during the lifetime of the donor suppose a suit will not be filed and the liability will have to be facing the universal donor unless the universal donor has been made a party to the proceedings the liability cannot be enforced against him so universal donor must be a necessary party to proceedings where the creditor wants to enforce the liability against the donor who had made a gift in respect of the universal donor of all his properties then universal donor must also be made a party for the purpose of making him liable for the liability this was so held in the decision reported in Muhammad Gunye versus Muhammad Gunye that is AR 1952 Tramagore Kuchin 23 so it is clear from this and also it is somewhere connected with the succession act also because universal donor can be gift can be made in respect of the entire property section 120 of the creepy act deals with the saving causes of certain type of gift that has been made in respect of movable property in condemnation of death that is Murgur Kausa and the Muhammad law which says it will apply to the gift of movable property made in condemnation of death and not the rule of Muhammad law dealing with gift so in the case of an movable property if a gift has been made while he was in death bed anticipating death then it can be affected by orally by handing over the property and the rule of Muhammad and law is not affected he is exempted from the provisions of the transfer of property act these are all the two conditions where the transfer of property act deals with the gift is not applicable and even in the case of a Muhammad and gift section 129 does not prevent the party to accept to go by a document of gift then once he decided a gift will be affected by a way of a document by a registered document then they will have to follow the procedure provided under section 123 of the transfer of property act namely it must be by a registered document executed by the donor or is on his behalf and it must be attested by not less than two witnesses it must be accepted during the lifetime of the donor and it can be accepted by the donor or is on his behalf when a gift has already been completed in respect of Muhammad then and he want to execute a document to evidence the transaction of gift later after some time then in such circumstances even if a document has been created or executed it does not require any registration because it is only evidencing an antecedent gift which has already been completed. But in the case where it is simultaneous gift is being given and it is being taken effect only by virtue of the execution of the document it is being done simultaneously then it is a condominium is document evidence a gift then it is it must follow the procedure provided under section 123 it must be registered etc. Further in the case where any dispute arose regarding the validity of the gift as to whether a gift has been affected or not whether it is valid or not if there is any conflict between the transfer of property approvals of transfer of property act and the Muhammad and law then in order to resolve that issue the later will prevail that is the personal law in respect the gift under the Muhammad law will prevail this was considered by the under brother Saikot in Sota Ubandu Sahib versus Masroon BB that is AR 1975 AP 271 now we allow to come to section 126 of the transfer program which deals with the revocation of the gift section 126 reach as follows when a gift can be suspended or revoked a Doni and the donor may agree that on the happening of any specified event which does not depend on the will of the donor a gift can be suspended or revoked subject to happening of that event but a gift which the parties agree they will be revocable wholly or in part at the mere will of the donor is void wholly or in part as to the as the case may be a gift may be may also be revoked if any of the any of the case save for want of failure of consideration in which it were a if it were a contract it might be rescinded save otherwise a gift cannot be revoked nothing contained in the section shall be deemed to affect the right of a bona fide purchaser for consideration without notice two illustrations are given a gives fields to be reserving himself with be a visa sent the right to take back the field in case be and his descendants died before a and be dies without descendants in his lifetime a may be a may take back the gift be a gives a lack of rupees to be reserving to himself with be sassan the right to take back rupees 10,000 out of the 10 lakhs or one lakh gift holds good as regards 90,000 but it is void in respect of 10,000 which continues to belong to it so in order to have a have a concessional or consensus or the consensus revocation it is clear from the section itself that there must be a condition in the gift that the gift will come into effect or take effect on happening of a specified event and happening of that event is not at the will of the donor and if it is agreed to buy both the donor and doni then if happening of that event the gift can be revoked by the donor but in case where a condition has been imposed though the doni accepts or agrees for that condition happening of happening of a condition at the will of the donors then the condition is either wholly or partly void and the donor donor doni can take the those those portion of the gift which is not initiated by the condition imposed because if you go by section 10 11 12 13 and some other provisions in the tp act where certain restrictions can be made what excel the restrictions can affect the right of the party or enjoyment of the property is a matter to be considered by the court on the basis of the conditions imposed and in all other cases because the illustration a and b will give a clear picture as to how this can be done because in explanation the illustration a the gift is subject to the b and his descendants not dying before the one that happens because it is not within the will of the donor suppose b a b dies without descendants suppose he has descendants probably the descendant may get it but b dies without descendants during life from a then gift where the a can the donor can take back the property it is revert back to the donor because what was indented by him is only in respect of the life interest that is in in favor of the doni and not the absolute right has not been given by virtue of the document as regards the second illustration is concerned he gives 1 lakh rupees to be retaining power of using in respect of 10 000 rupees by himself thereby he is not divesting with 10 000 he is indented to give only 90 000 to the donor doni and if that gift is even accepted by the doni for the condition with that condition the gift will be valued in respect of 90 000 and a can retain the donor can retain 10 000 between because it has not been intended to be gifted he want to retain the power of the mind of user of that amount by himself as because the without the there also it comes whether it is a deficiency clause or deficiency clause or a a repugnant clause suppose if it is a deficiency clause giving certain restrictions or contingent or things to be happened a condition or condition to happen subsequent or a condition precedent then it will not be happening on the basis of the condition precedent and condition subsequent if it is not fulfilled then it can be revoked by the donor but as regards the other aspects are concerned it can be revoked once the gift is complete normally it is irrevocable and it can be revocable only as though it is a contract and on what conditions a contract can be resented only on those conditions this can be possible but it is also saves the right of a bona fide purchaser for without notice as provided under some of the provisions of the TPI itself in the case of a fraudulent transfer or in the case of a conditions imposed one of us one of us gift one of us transfer that has been made without title a transfer has been affected in all those cases where the original title holder gets the right then if it is he is a person who has purchased it without knowledge of the without notice of the engage this thing then he will be protected to the extent provided under the TPI not full extent because he will have to prove so many things he is a bona fide purchaser value suppose he is a contract my document for the purpose of defeating the donor then the donor will not be getting that benefit so all those things depends upon evidence so in all other cases the gift can be revoked only on negotiating circumstances which are capable of rescinding the contract in case the contract is being challenged there they are undue influence coercion fraud misrepresentation and it is not an onerous gift then merely because the donor executed a cancellation deed it cannot be said that the cancellation this is valid the unilateral cancellation is not possible you will have to go to the court and that too can be done within a reasonable time because he cannot prolong the litigation of challenging the gift after after after a long time after the period is over because you know very well that section three years is provided for the purpose of setting aside a document even the case of fraud it will come from the date of the fraud in all other cases misrepresentation etc immediate in the case of a coercion once the coercion is seized and he free from the disability he can do it so he cannot prolong the same for a longer period further invariably in almost all decisions i'm not going into the decisions on this aspect in almost all decisions it has been held that once the gift has been exceed complete and prime of ac there is no vitiating circumstances or suspicious circumstances made out then court will be there will be a there is a presumption incur the gift once the donor proves prime of ac that there are vitiating circumstances like under coercion he has been done under the undue influence it has been done or by mistake or misrepresentation has been done mistake also not mere mistake as understood by legal mistake it has been done or it has been done by trick or otherwise without knowing without making him to understand the things in a correct manner all those things will have an impact on the validity of the gift and quote if it is satisfied that it has been obtained on account of these circumstances then court will normally set aside the gift and give a verdict in favor of the donor who has been defrauded being forced to execute a document because the gift is a voluntary transfer it is and if it is in involuntary one or made under coercion or certain threat or due to some misrepresentation he was taken to the resource office with some purpose and said the document which was not intended by was executed or in respect of suppose he went there for the purpose of exhibiting a force for the property but the entire property without reserving a right to him has been given now all such circumstances if the court is satisfied that there is a misrepresentation made and he has been defrauded then court will be inclined to grant a relief for the donor now all other cases it will not be done but in the case of in the case of a liability that has been made suppose in a case where gift has been made and the diversity of right interest has been provided in the earlier part of the gift later a direction has been included that you will have to maintain me then it is only a pious wish of the donor and you will not having an enforceable effect but the positions will be different if a condition has been the purpose of the gift itself is made for the purpose of maintaining him with the hope that he will maintain and on the condition that he will maintain the gift has been made and it is accepted that only then a violation of that condition will stand amount to a ground for revocation as provided under subsection 1 of section 126 the same provision has been provided under the maintenance of senior citizens and parents act 2007 also 23 deals with that there also the court held to bring out has said that merely because there was a there was no direction in the document but there was an understanding between the parties that will not be sufficient for the maintenance tribunal to set aside the document unless there is a pleading and also a document it has been specifically mentioned that there is a condition for maintaining the person who is making the gift during his lifetime if there is a violation made by the donor then the the the person with the senior citizen who made the transaction or the transfer is entitled to get back the property by setting aside the upmail by filing an application before the maintenance tribunal this was so held in the decision reported in Suja Kumar another versus sub collector and another 2021 KHC online 3451 because I do not get the because it came in the live land also in a CC also and the same view has been affirmed by the full bench of the Kerala High Court in 2025 KLT 533 Subhashini versus sub collector code record and the burden is always on the person who is claiming the property in the case of a coercion in the case of a undue influence because once an undue influence has been established the possibility of undue influence that is being established by the donor prime of AC that the burden is on the donor to prove that there was no undue influence and he was aware of all those aspects even in the case of the fraud suppose the donor was aware of aware of the fraud committed by the donor even at that time at the time he executed the document but he condones it and execute the document then a person who knows about the fraud and execute the document cannot later turn around and say that it was obtained by fraud and he is entitled to get back the document or property and mere mistake or fully committed saying that under the impression that the donor will maintain me I have gifted the property will not be a ground for the donor to get revocation of the document unless it has been specifically made as a condition for executing the document itself in the gifted and it was accepted by the donor so it is clear from the provisions that normally unless there is a condition of revocation of happening of certain event which is not under the domain of the or at the will of the donor then happening of that will give rise to an opportunity for the donor to revoke the will and he will get back the property in all other cases it is an irrevocable in nature and it will be revoked or it can be set aside only on the grounds mentioned or negotiating circumstances which it entitles the person person to the contract to get the contract rescinded and otherwise it is not revocable with this I hope that I can made the provisions of the gift as contemplated under the transfer property act to the extent possible to the extent understood by me it will be beneficial to you and thank you very much for kindly for patiently hearing me on this aspect thank you very much thank you sir so subtly explained that everyone can understand how you have beautifully explained that thing so two questions are there if a gift deed of a movable property is executed and notarized at a court then how can it be disputed by other siblings on the grounds of malafide a gift deed has been executed and notarized notarized is not possible because if the act says that it might be registered it is a compulsory registered document in terms of section 17 17 not only 17 section 126 because section 17 says an immoral property worth more than 100 rupees alone is subject to registration but in respect of a gift under section 126 no value has been provided if it a gift is made of an immoral property it can be only by a registered document that 100 rupees otherwise has failed into insignificance that requires a relook notarization will not validated no I am saying the validity of rupees 100 for the purposes of registration I say that it has failed into insignificance because as far as the gift is concerned no I am saying rupees 100 has no carries no value as such in that no value as such there section 17 says immoral property worth more than 100 rupees alone requires to be that's what I am trying to say that it has lost its sheen within the flux of time yes Rajiv what would be the instances of gift being a contract as just expressed by you no the see contract normally is an offer and acceptance but as far as the though it is a contract it is without consideration it is a voluntary transfer as far as gift is concerned if any circumstances have been made out to prove that it is not a voluntary transfer but we shaded by certain other circumstances then just like a contract you can revoke it and one question is when a senior citizen revokes a gift under the senior citizen act whether the provisions of section 126 of the tp act would apply in such case or not so because it is a summary remedy that has been provided for the purpose of setting aside a gift or any transfer made in contemplation of maintenance by the person who is receiving the property since the summary remedy provided in the full course this full bench decision of the Kerala High Court it has been specifically mentioned that the maintenance tribunal is only to consider the question as to whether the conditions are there or not the conditions are there if they failed they can do it otherwise if it is goes to the fraud or other aspects then the maintenance tribunal will not get because they will not be getting all the powers of the civil court to go into the question that is what the full bench of the Kerala High Court says in 2000 I have mentioned earlier that is 2025 KLT 533 that is Subhashree versus district collector code code and another thank you sir and tomorrow friends we would understand what directions have been given by the honorable supreme court in Tender Kumar Antel versus CBI wherein various directions have been issued by on right of bail direction issued to different authorities the session is by Justice Kudip Singh a former judge from Punjab in Anaheekot the two stay connected with us tomorrow at 6 p.m. Namaskar Jay