TRANSFER OF PROPERTY ACT AND MOHAMMEDAN LAW: A COMPARATIVE ANALYSIS WITH RESPECT TO REVOCATION OF GIFT

Gift is the gratuitous transfer of property from one person to another. Section 122 of Transfer of Property Act, 1882 defines ‘Gift’. A gift is usually an exchange or transfer of ownership of any property from one person to another where this action is completely voluntary in nature and there is no consideration i.e. without any compensation or any monetary value in any shape or form. ‘Voluntary’ and ‘Gratuitous’ are the two essence of a gift. 

A gift may either be a gift inter vivos or gift Testamentary. The former is the exchange or transfer of gifts between two living persons and latter means that it is made by a will and does not become operative until the death of the donor. In the testamentary gift, the ownership of the gift is transferred to the donee only after the death of the testator. The latter is outside the scope of the Act as the Act deals only with the former one. 

In Mohammedan Law, the concept of gift differs from the Transfer of Property Act. In here, gift is the transfer of property as accordance with the provisions of Quranic Law. Gifts under Mohammedan Law includes:

1. When the corpus of a thing is gifted, it is called Hiba.
2. When only the usufructs of a property is gifted, then it shall be termed as Ariya.

ESSENTIALS OF A GIFT 

The essentials of a gift have to be fulfilled to be held as a valid one. The following are the essentials of a valid gift:

1. Transfer of ownership
2. Existence of ownership
3. Consideration
4. Voluntarily 
5. Competency of the Donor 
6. Acceptance by the Donee 

Whereas, under the Mohammedan Law, there are only three essentials for a gift. They are:

1. Declaration of the gift by the donor.
2. Acceptance by the donee.
3. Putting the donee in the possession of the property thereby gifted. 

SUSPENSION OR REVOCATION OF THE GIFT 

UNDER TRANSFER OF PROPERTY ACT

Section 126 of the Act mentions about the revocation which literally means the nullification of any act which is formerly given. A gift may be suspended or revoked by 

1. Agreement 
2. Recession as in case of a contract

By agreement

The gift can be revoked or suspended, by the donor or the donee upon, happening of some event which is not dependent upon the will of the donor. But the condition which revokes the gift must be expressly laid down in the gift. The condition must be mutually agreed upon. A gift which is revoked at the pleasure of the donor is no gift at all. 

A gives a property to B and with B’s permission, A has the right to take back the property if B and his heirs die before A. B dies before A leaving no heirs. The property will be remained with A which will be legally valid. From the above illustration, it can be analysed that it is also essential that the condition must be in the nature which beyond the control of donor.

In the case of Jagdeo Sharma v. Nandan Mahto, the alienation of a gift deed was challenged on the basis of a condition in the gift deed. The condition laid down in here was a condition subsequent which prohibits to alienate the property further violating the Section 10 of the Act. It was held that, the condition is void with respect to the Section 10 but the gift does not get revoked. 

By recession in case of a contract 

Section 19 of the Indian Contract Act, 1872 mentions about the revocation of a contract i.e. when consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained. On the same grounds a gift may also be revoked. If the consent of the donor was not free then the same will stand void. 

In the case of Kamalakanta Mohapatra v. Pratap Chandra Mohapatra, if the deed of gift is registered and executed, it cannot be revoked until it fulfils the criteria as mentioned under Section 126 of the Act. 

UNDER THE MOHAMMEDAN LAW

When there is a gift deed and both the parties are Muslims, then the same shall be governed under Mohammedan Law and not under the Transfer of Property Act,1882. A gift can be revoked any time before its delivery. However, it can be revoked even after delivery of possession either with the Court’s order or with the donee’s consent.

Also, revoking a gift is absolutely a personal right of the donor, and, consequently, it cannot be revoked by his heirs after his death and can also not be revoked even after the death of the donee.