Let's shed some light on the following aspects :
- What is regular Gift Deed ?
- What is a conditional Gift Deed ?
- What are the grounds on the basis of which a Gift Deed can be revoked ?
- Can a conditional Gift Deed be revoked ?
- What is a complete Gift and an incomplete Gift Deed ?
What is a regular Gift Deed ? Regular Gift Deed of both Movable and Immovable Properties
According to section 123, for the purpose of making a regular Gift Deed of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. There should be a recital and evidence of acceptance. The title should have been transferred to the donee in order to make the gift complete, without any conditions mentioned in the Gift Deed.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.
In this case of In S.Sarojini Amma vs Velayudhan Pillai Sreekumar, it was declared that,
“A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.”
What is a Conditional Gift Deed ?
Conditional Gift Deed of both Movable and Immovable Properties:
For the purpose of making a CONDITIONAL Gift Deed of Immoveable Property, pretty much the same procedure is followed i.e., the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. There should be a recital and evidence of acceptance. The title should have been transferred to the donee in order to make the gift complete. Except the regular gift deed, a conditional Gift Deed includes certain conditions mentioned in the Gift Deed which should be mentioned in the Gift Deed as well as accepted by the Donee.
Eg: A father who is a senior citizen gifts his self acquired house property in the name of his Son but mentions a condition in the Gift Deed that during the father's lifetime, if the son does not take care of his needs including food, clothing, shelter and/or misbehaves with the father, the gift shall be revocable at the option of the buyer.
What are the grounds on the basis of which a Gift Deed can be revoked ?
Section 126 of Transfer of Property Act states that a Gift Deed is revocable but with certain conditions. Revocation of Gift Deed is possible but not at the will of donor. A gift Deed may be executed with certain conditions attached to it, which if not followed can result in the cancellation of the Gift Deed. For Example A gives a residential property to B, reserving to himself, with B’s assent, the right to take back the residential property in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the residential property. Let’s take another example A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A. These are the examples of a Conditional Gift deed. Misconception between consideration and condition: One of the most important requisites of the a Valid Gift is that it should be without consideration. However, there is a misconception that often occurs between the meaning of consideration and a conditional gift. The case of S.Sarojini Amma vs Velayudhan Pillai Sreekumar is a classic example of this misconception. Here, when the Gift Deed was executed between the plaintiff and defendant, donor (appellant in this case) executed a gift deed with certain conditions that respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour respondent. Such gift deeds can be cancelled or revoked as the same includes a consideration attached to it which was misunderstood in the name of condition.
Can a conditional Gift Deed be revoked ?
Yes, a conditional Gift Deed can be revoked if the following terms have been complied with :
a. Offer with conditions mentioned in the Gift Deed
b. Acceptance of the Gift along with the conditions
c. Gift Deed executed during the life time of the donor.
d. Conditions are not fulfilled based on valid grounds
In the above case of father and son, a conditional Gift has been executed which shall be effective after the death of the father only. If the conditions mentioned there in are not fullfilled, the same shall be considered as an "Incomplete Gift" and revocable at the option of the father by proving the same on valid grounds and basis. In S.Sarojini Amma vs Velayudhan Pillai Sreekumar, supreme court opined that “In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.”
In Sudesh Chhikara vs Ramti Devi on 6 December, 2022, supreme court declared that
"When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal."
What is a complete Gift and an incomplete Gift Deed ?
To simply, the conditions need to be fulfilled as mentioned in the Gift Deed in order to be said as "COMPLETE" which then cannot revoked. To the contrary the conditions should not be fulfilled as mentioned in the Gift Deed in order to be said as "INCOMPLETE" which then can be revoked at the option of the DONOR.
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