Gifts of Movable and Immovable Property (Sections 122–129)

Sections 122 to 129 of the Transfer of Property Act, 1882 govern the transfer of property by gift — the only chapter of the Act in which the transfer is, by definition, gratuitous. A gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, the donor, to another, the donee, and accepted by or on behalf of the donee. The Supreme Court in K Balakrishnan v K Kamalam (2004) 1 SCC 581 emphasised that the eight sections of Chapter VII are interconnected and must be read together to grasp the scheme. The chapter is small, but the doctrinal density is unusually high, and the topic remains a perennial favourite of judicial-service papers.

Two structural features mark the chapter out. First, the formalities for a gift of immovable property are stricter than for a sale of the same property: every immovable gift demands a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Second, Section 129 saves the rules of Mahomedan law and the doctrine of donatio mortis causa, with the result that a substantial body of gift transactions falls outside the Act altogether.

Statutory anchor — Section 122 TPA

From the language of Section 122, decisions have extracted seven essential elements: a donor; a donee; the absence of consideration; a voluntary act; the subject-matter (existing movable or immovable property); the transfer; and acceptance during the donor's lifetime. The Supreme Court has applied this framework consistently — most recently in Daulat Singh v State of Rajasthan (2021) 3 SCC 459, where the court held that no particular mode of acceptance is prescribed, and that conduct, possession or mutation entries can each be sufficient evidence.

The seven essentials in detail

Voluntariness and absence of consideration

The defining feature of a gift is its gratuitousness. The Supreme Court in Sonia Bhatia v State of Uttar Pradesh (1981) 2 SCC 585 emphasised that the absence of consideration is the dividing line between gift and every other species of transfer; what is exchanged for natural love and affection alone, and not for any pecuniary or other equivalent, falls within Section 122.

The word "voluntarily" is used in its popular sense — denoting the exercise of unfettered will. The principles of free consent under the Indian Contract Act, 1872 apply by force of Section 4 of the TPA. The Supreme Court in Subhas Chandra Das Mushib v Ganga Prosad Das Mushib AIR 1967 SC 878 held that the law on undue influence in gifts inter vivos is the same as that for contracts under Section 16 of the Contract Act. Mere relationship between donor and donee will not raise a presumption of undue influence; more than mere influence must be proved to render influence "undue". The Supreme Court reiterated the framework in Afsar Shaikh v Soleman Bibi AIR 1976 SC 163.

The Supreme Court in S Sarojini Amma v Velayudhan Pillai Sreekumar (2018) 17 SCC 313 (and again in (2019) 11 SCC 391) added a critical refinement: a gift must be unconditional and made in praesenti. A so-called gift conditional on the donor's continued enjoyment, with no recital of acceptance and possession remaining with the donor as long as he is alive, does not become complete during the donor's lifetime and may be cancelled.

Donor and donee

The donor must be sui juris and competent to transfer in the sense of Section 7. A minor's gift is void (Mohori Bibee v Dharmodas Ghose (1903) ILR 30 Cal 539, applied in this context). A coparcener cannot make a valid gift of his undivided coparcenary interest without partition — but a gift of property obtained after a preliminary decree of partition is valid (Renu Devi v Mahendra Singh AIR 2003 SC 1608).

The donee must be an ascertainable person but need not be competent to contract. A minor may be a donee, and acceptance may be made on the minor's behalf. A gift may be made in favour of a child en ventre sa mere. The donee cannot, however, be the public at large or an unregistered society. The presumption in Hindu law, in contrast to English law, is that two or more donees take as tenants in common rather than as joint tenants.

Subject-matter — existing property

The subject-matter must be certain existing movable or immovable property — terms whose contours are set by the definitions in Section 3 — and must be transferable under Section 6. Section 124 reinforces the point by making any gift of future property void as to that future property — which is consistent with the gift being a transfer in praesenti and not a promise. The Supreme Court in Karsanbhai Dabhyabhai Parmar v Dahiben (2018) 14 SCC 526 held that a gift deed by a widow before partition, based on a hypothetical share, is void.

Acceptance — the central battleground

Acceptance is the element on which most gift litigation turns. Section 122 does not prescribe a mode; the case-law has filled the gap. The Supreme Court in K Balakrishnan v K Kamalam (2004) 1 SCC 581 held that acceptance can be inferred from the donee's possession of the property, or from the donee's possession of the deed of gift, or from mutation entries, or from the donee's payment of land revenue. The Court in Daulat Singh v State of Rajasthan (2021) 3 SCC 459 added that acceptance is a question of fact in each case.

Where the gift deed itself recites that possession has been delivered, a presumption of acceptance arises that the donor must displace by clear evidence — the Supreme Court so held in Tiloth Valappil Ambunki v Kunhambu Karanavan (2020) 18 SCC 317. Where the donee is a minor child of the donor, possession by the donor on the minor's behalf will suffice — express acceptance is not necessary, since a non-onerous gift to a child is presumed to be beneficial (K Balakrishnan, supra).

Two further Supreme Court decisions complete the framework. In Asokan v Lakshmikutty (2007) 13 SCC 210 the Court held that registration of the deed and delivery of possession together amount to acceptance. In Gomtibai v Mattulal (1996) 11 SCC 681 the Court held that the donor's title to the property stands divested in the donee only when the gift deed is duly registered. The acceptance must in each case be made during the donor's lifetime; if the donee predeceases the donor, the gift is void.

Statutory anchor — Section 123 TPA (mode of transfer)

Immovable property — registration and attestation are mandatory

The first paragraph of Section 123 is uncompromising. Every gift of immovable property — irrespective of value — requires (a) a registered instrument, (b) signed by or on behalf of the donor, (c) attested by at least two witnesses. Mere delivery of possession of land, however clear, will not perfect a gift. The doctrine of part performance under Section 53A does not apply to gifts (Maung Hla Maung v Maung Po Hnit AIR 1929 Rang 316), and recitals in unregistered petitions or mutation entries are not substitutes for the registered instrument (Vartha Pillai v Jeevarathammal (1919) ILR 43 Mad 244, PC).

The most consequential modern restatement of the doctrine is the Supreme Court's decision in Renikuntla Rajamma v K Sarwanamma (2014) 9 SCC 445, which overruled an earlier line that had insisted on delivery of possession in addition to registration. The Court held that a gift of immovable property is complete on registration of the deed even where the donor reserves a life interest and does not deliver immediate possession. The decision has settled an area of long uncertainty and is now the leading authority on completeness.

Movable property — registered deed or delivery

For movables, the section provides two alternatives: a registered instrument, or delivery in the same manner as goods sold may be delivered. Either suffices. The English foundation lies in Irons v Smallpiece (1819) 2 B & Ald 551 and Cochrane v Moore (1890) 25 QBD 57 — without delivery, an oral gift of movables is no more than a promise without consideration. Where the donee is already in possession, no further delivery is required.

Attestation — animus testandi

The two attesting witnesses must have either seen the donor sign the deed or received from him personal acknowledgment of his signature, and must have signed the deed in his presence with the animus to attest. A scribe who has also seen the donor sign and intends to attest may serve as an attesting witness; a scribe who signs only to identify himself as scribe does not. The Supreme Court in Brij Raj Singh v Sewak Ram (1999) 4 SCC 331 read together with Govindbhai Chhotabhai Patel v Patel Ramanbhai Mathurbhai (2020) 16 SCC 255 has clarified that, by virtue of the proviso to Section 68 of the Indian Evidence Act, a registered gift deed need not be proved by an attesting witness unless its execution is specifically denied.

Whether a gift may be revoked between delivery of the deed and registration

This long-disputed question was set at rest by the Privy Council in Kalyanasundaram Pillai v Karuppa Mooppanar AIR 1927 PC 42. Lord Salvesen held that registration is a necessary solemnity for the enforcement of a gift but does not suspend the gift until registration actually takes place. Once the donor has handed the executed deed to the donee and the donee has accepted it, the donor has done everything in his power to complete the donation; registration is the act of an officer of the law and does not depend on the donor's continuing consent. The same reasoning explains why a gift is not defeated by the donor's death between delivery and registration.

Section 124 — gift of existing and future property

A gift of future property cannot stand because it is, in substance, only a promise — and a promise unsupported by consideration is unenforceable as a contract. The Allahabad High Court in Brindabini Behari v Oudh Behari AIR 1947 All 179 applied the rule. Section 124 differs from a sale or mortgage of future property, both of which can operate as contracts because consideration moves on the other side. Where the gift covers both existing and future property, the existing portion remains valid; only the future portion is struck down.

Section 125 — gift to several donees, one of whom does not accept

Section 125 applies where the gift is to two or more donees as tenants in common. The refusal of one does not defeat the gift as a whole; it simply means that the share which the refusing donee would have taken does not vest. Where, however, the donees are intended to take as joint tenants, the section has no application — the joint tenancy is by its nature a single grant. The presumption in Hindu law is in favour of tenancy in common; the presumption in English law is in favour of joint tenancy. Indian courts apply the Hindu presumption to Hindu gifts (Jogeswar Narain v Ram Chund Dutt (1896) ILR 23 Cal 670, PC).

Section 126 — when gift may be suspended or revoked

Section 126 is one of the more litigated provisions of the chapter. It permits revocation in only two cases: (a) on the happening of a specified event that does not depend on the donor's will, where the parties have so agreed at the time of the gift, or (b) on grounds on which a contract may be rescinded under Section 19 of the Indian Contract Act — coercion, fraud, misrepresentation or undue influence. A gift revocable at the mere will of the donor is no gift at all, and is void.

Section 126 controlled by Section 10

The High Courts have repeatedly held that Section 126 must be read with Section 10 — conditions restraining alienation. A clause in a gift deed totally prohibiting alienation by the donee is void under Section 10, even though it may be styled as a condition subsequent under Section 126. The Patna High Court in Jagdeo Sharma v Nandan Mahto AIR 1982 Pat 32 and the Karnataka High Court in M Lakshminarayana v D B Pradeep Kumar (2010) 1 ULR 192 have applied the rule.

The Narmadaben qualification

The Supreme Court in Naramadaben Maganlal Thakker v Pranjivandas Maganlal Thakker (1997) 2 SCC 255 held that, in the case of a conditional gift where the donor retains possession and enjoyment during his lifetime, the gift confers only a limited right on the donee. Unless the donee fulfils the condition, the donor may cancel the conditional gift by another registered instrument. The decision must, however, be read alongside K Balakrishnan, which held that there is no prohibition in law on a donor transferring title and ownership while reserving possession and enjoyment for life — the gift may still be complete. The two cases are reconcilable on the footing that Narmadaben applies where there is no recital of acceptance and no acted-upon delivery; Balakrishnan applies where the gift is complete in praesenti and only enjoyment is reserved.

No revocation aliunde

The Calcutta High Court in Behari Lal Ghose v Sindhubala Dasi (1918) ILR 45 Cal 434 read the third paragraph of Section 126 as a legislative recognition of Lord Nottingham's dictum in Villers v Beaumont (1682) 1 Vern 100: a man who improvidently binds himself by a voluntary deed without reserving a power of revocation must lie down under his own folly. A gift cannot be revoked by mistake of the donor alone, or because the donor later regrets it; nor can it be revoked unilaterally by a registered deed of cancellation (Shakuntla Devi v Amar Devi AIR 1985 HP 109).

Revocation by rescission

Coercion as defined in Section 15 of the Indian Contract Act is wider than its English counterpart and includes a threat to commit any act forbidden by the Indian Penal Code; the Madras High Court in Ammiraju v Seshamma (1918) ILR 41 Mad 33 held that even a threat to commit suicide may amount to coercion. Fraud and innocent misrepresentation under Section 18 of the Contract Act are also grounds for revocation. The most common ground in the reported decisions is undue influence — particularly in cases of fiduciary relationship and pardanashin women, where the burden of proving the absence of undue influence is shifted to the donee. The Supreme Court in Keshav v Gian Chand 2022 SCC OnLine SC 81 reaffirmed the framework and extended the protection to old, illiterate, ailing or infirm donors.

Section 127 — onerous gifts

Where a gift is in the form of a single transfer of several things, one of which is burdened by an obligation and the others are not, the donee must take all or none. Where, however, there are two or more separate and independent transfers, the donee may accept those that are beneficial and refuse those that are onerous. The first illustration to Section 127 derives from Moffett v Bates; the second from Warren v Rudall. Section 127 also makes special provision for an onerous gift to a person not competent to contract — the minor donee is not bound by his acceptance during minority but becomes bound on retaining the property after attaining majority and becoming aware of the obligation.

Section 127 and the related Section 128 (universal donee) form their own miniature framework and are the subject of a separate, dedicated chapter — Onerous Gifts and Universal Donee — to which the reader is referred for the detailed exposition.

Section 128 — universal donee

Section 128 makes a person who receives the donor's whole property by gift personally liable for the debts and other liabilities of the donor at the time of the gift, to the extent of the property comprised in the gift. The provision rests on the maxim qui sentit commodum debet et sentire onus. The Bombay High Court in Madhukar Sagun Karpe v Institute of Public Assistance AIR 1998 Bom 201 read the section literally — the liability is confined to the value of the property received and does not travel beyond it. Where any portion of the donor's property is excluded from the gift, the donee is not a universal donee and Section 128 has no application (Shyam Behari Mal v Maha Prasad AIR 1930 All 180); but where the part retained is insignificant — for example, a life interest reserved for the donor's maintenance — the courts have held that the donee remains a universal donee.

Section 129 — Mahomedan law and donatio mortis causa

Mahomedan gifts — hiba

The savings clause in Section 129 is the most consequential paragraph of the chapter. By force of it, the rules of Chapter VII — including the registration and attestation requirement of Section 123 — do not apply to gifts between Mahomedans. The Supreme Court's seminal decision in Hafeeza Bibi v Sk Farid (2011) 5 SCC 654 settled the long-standing controversy: an oral hiba is valid if the three Mahomedan-law essentials are satisfied — declaration of the gift by the donor, acceptance of the gift by the donee, and delivery of possession of the subject-matter. Where these requirements are met, no registration under Section 17 of the Registration Act is required, and no attestation under Section 123 is needed.

The earlier Supreme Court decisions in Valia Peedikakkandi Katheessa Umma v Pathakkalan Naravanath Kunhamu AIR 1964 SC 275 and Maqbool Alam Khan v Khodaija AIR 1966 SC 1194 had already affirmed the same framework: delivery of possession, actual or constructive, is the sine qua non of a valid hiba. The Allahabad High Court in Yaqub Ali v Vaqub Ali AIR 1965 All 460 applied these principles in disputes between siblings.

A subtler point arises with hiba-bil-iwaz (gift for an exchange). The Kerala High Court in Imbichimoideen Kutty v Pathumunni Umma AIR 1989 Ker 148 held that a hiba-bil-iwaz, being in the nature of a sale, attracts the registration requirement of Section 54 where the property is immovable and worth Rs 100 or above. The Mahomedan-law saving in Section 129 does not extend to such transactions.

Donatio mortis causa

The chapter also does not apply to gifts of movable property made in contemplation of death. Such gifts are governed by Section 191 of the Indian Succession Act, 1925, which carries forward the English doctrine of donatio mortis causa. The Orissa High Court in Tila Bewa v Mana Bewa AIR 1962 Ori 130 illustrates the application: the donor must be in apprehension of death from a present illness, must deliver the subject-matter, and the gift takes effect only on the donor's death from that illness. If the donor recovers, the gift is revoked; if the donee predeceases the donor, the gift fails.

Hindu, Christian and tribal gifts

Section 122 onwards apply to Hindus subject to one carve-out — the Dayabhaga rule that acceptance is not necessary was altered by Section 122 itself, which insists on acceptance. The Privy Council in Kanai Lal v Kumar Purnendu Nath (1946) 51 Cal WN 227 confirmed the alteration. The rule against gift to an unborn person at pure Hindu law was relaxed by the Hindu Disposition of Property Act, 1916 and by amendments to Sections 11–13 of the Hindu Disposition Acts in 1929; the result is that a gift to an unborn person is valid if it complies with the rule against perpetuity in Section 14 of the TPA and the corresponding sections of the Indian Succession Act.

Christians, as absolute owners with no concept of joint family property, may freely gift their property (Lalitha Theresa Sequeira v Dolfy A Pias (2014) 10 SCC 731). Tribal communities are governed by their respective customary laws and state legislations.

Key Supreme Court decisions to memorise

• Renikuntla Rajamma v K Sarwanamma (2014) 9 SCC 445 — gift of immovable property is complete on registration of the deed even without contemporaneous delivery of possession; the earlier line insisting on delivery is overruled.
• K Balakrishnan v K Kamalam (2004) 1 SCC 581 — acceptance can be inferred from possession; donor may reserve enjoyment without defeating the gift.
• Hafeeza Bibi v Sk Farid (2011) 5 SCC 654 — Section 129 saves Mahomedan oral hiba; the three essentials are declaration, acceptance, delivery of possession.
• Naramadaben Maganlal Thakker v Pranjivandas Maganlal Thakker (1997) 2 SCC 255 — conditional gifts where the donor retains possession may be cancelled if the condition fails.
• S Sarojini Amma v Velayudhan Pillai Sreekumar (2018) 17 SCC 313 — a gift must be unconditional and in praesenti; conditional gifts with no acceptance and no acted-upon delivery do not become complete.
• Asokan v Lakshmikutty (2007) 13 SCC 210 — registration plus delivery of possession amounts to acceptance.
• Gomtibai v Mattulal (1996) 11 SCC 681 — title divests in the donee only on registration of the gift deed.
• Sonia Bhatia v State of UP (1981) 2 SCC 585 — absence of consideration is the defining feature of gift.
• Daulat Singh v State of Rajasthan (2021) 3 SCC 459 — acceptance is a question of fact; conduct, possession, mutation entries each suffice.
• Kalyanasundaram Pillai v Karuppa Mooppanar AIR 1927 PC 42 — registration does not suspend the gift; once the donor has handed over the deed, he cannot revoke before registration.

Cross-doctrines and the wider TPA framework

A gift is no different from any other transfer in being subject to the general doctrines that pervade the Act. A gift made with intent to defeat creditors is voidable under Section 53 — see fraudulent transfers. A gift made pendente lite is subordinated to the decree under Section 52 — see lis pendens. A gift to an unborn person must comply with Section 13 and the rule against perpetuity in Section 14. A donor who purports to gift more than he owns may yet pass title under Section 43 — feeding the grant by estoppel when he later acquires the title. The general rules on operation of transfer in Sections 8 to 11, and the doctrine of notice — actual and constructive, apply equally to gifts as to other modes of transfer.

The interplay with the wider Transfer of Property Act framework is the candidate's best friend in the answer-paper. A clean answer on Section 122 should locate the gift within the seven essentials; an answer on Section 123 should turn on Renikuntla Rajamma; an answer on Section 126 should distinguish the limbs of the section and explain the Narmadaben qualification; and an answer on Section 129 must always begin with Hafeeza Bibi.

Drafting and pleading angle

For the drafting paper, three propositions are critical. First, every gift of immovable property must be by a registered deed attested by two witnesses — there is no value-threshold exception, and no doctrine of part performance to fall back on. Second, the deed should expressly recite acceptance by the donee — recitals about delivery of possession or handing over of the deed raise rebuttable presumptions of acceptance. Third, where the donor wishes to retain enjoyment for life, the deed should so provide expressly while making clear that title passes in praesenti — the line of distinction between K Balakrishnan and Narmadaben turns on this drafting choice.

Exam-angle takeaways

1. Section 122 — seven essentials: donor, donee, absence of consideration, voluntariness, existing property, transfer, acceptance during the donor's lifetime.
2. Section 123 — registration and two-witness attestation are mandatory for immovable gifts; movables go by registered deed or delivery.
3. Section 124 — gift of future property is void as to that future property.
4. Section 125 — gift to several donees as tenants in common is severable; refusal of one does not defeat the rest.
5. Section 126 — gifts may be suspended or revoked only on a stipulated event independent of the donor's will, or on grounds for rescission of contract under Section 19 ICA; controlled by Section 10.
6. Section 127 — onerous gifts: one-trunk rule; the donee takes all or none of a single transfer.
7. Section 128 — universal donee is personally liable for the donor's debts to the extent of the property received.
8. Section 129 — saves Mahomedan law (hiba and donatio mortis causa); Hafeeza Bibi is the controlling authority.

Frequently asked questions

Is delivery of possession necessary to complete a gift of immovable property under the TPA?

No. The Supreme Court in Renikuntla Rajamma v K Sarwanamma (2014) 9 SCC 445 settled the controversy and held that a gift of immovable property is complete on registration of the deed even where the donor reserves a life interest and does not deliver immediate possession. Section 123 requires only a registered instrument signed by the donor and attested by at least two witnesses; physical delivery is not part of the statutory requirement for an immovable gift, although it is one mode of completing a gift of movable property.

Can a gift deed be revoked unilaterally by the donor after it has been accepted?

No. Section 126 permits revocation only in two narrow situations — on the happening of a specified event that does not depend on the donor's will (where the parties have so agreed at the time of the gift), or on grounds on which a contract may be rescinded (coercion, fraud, misrepresentation or undue influence). A gift revocable at the donor's mere will is void under the section. The Himachal Pradesh High Court in Shakuntla Devi v Amar Devi AIR 1985 HP 109 confirmed that a unilateral deed of cancellation cannot defeat a completed gift.

Does Chapter VII of the TPA apply to gifts between Mahomedans?

Largely no. Section 129 expressly saves the rules of Mahomedan law, with the consequence that the registration and attestation requirement of Section 123 does not apply to a hiba. The Supreme Court in Hafeeza Bibi v Sk Farid (2011) 5 SCC 654 settled the issue: an oral hiba is valid if the three essentials are satisfied — declaration, acceptance, and delivery of possession. The exception is hiba-bil-iwaz, which is in the nature of a sale and attracts the registration requirement under Section 54.

What is the position of an onerous gift accepted by a minor?

Section 127 provides that a donee not competent to contract who accepts an onerous gift is not bound by his acceptance. But if, after attaining majority and becoming aware of the obligation, he retains the property, he becomes bound. The principle parallels that for minor partners under Section 30 of the Indian Partnership Act, 1932 — the estoppel arises from the retention of the property within a reasonable time of attaining majority. During minority itself, the gift is complete; if the minor donee dies, his heir takes.

Can a coparcener make a valid gift of his undivided coparcenary interest?

Generally no. The Karnataka High Court in CN Leelavathi v M Narayanappa (2021) confirmed that a gift by a coparcener of his undivided coparcenary interest, whether to another coparcener or to a stranger, is void in the absence of consent of the other coparceners. A gift of property obtained after a preliminary decree of partition is, however, valid (Renu Devi v Mahendra Singh AIR 2003 SC 1608). The donor must have a clear, divided interest before he can validly gift it.

How does Section 124 treat a gift comprising both existing and future property?

Section 124 declares that a gift comprising both existing and future property is void as to the latter — but the gift survives as to the existing property. The reasoning is that a gift of future property is, in substance, only a promise, and a promise unsupported by consideration is unenforceable. The section therefore does not destroy the gift entirely; it severs the future component and lets the existing component stand. The Allahabad High Court in Brindabini Behari v Oudh Behari AIR 1947 All 179 applied the rule.