Transfer of Property Act, 1882 | Chapter VII - Gifts

Section 122 - Gift Defined under the Transfer of Property Act, 1882

Section 122 defines a gift as a voluntary transfer of existing movable or immovable property, without consideration, by a donor to a donee. A legally effective gift also requires acceptance by or on behalf of the donee within the donor's lifetime while the donor remains capable of giving.

Complete text of Section 122 - Gift defined

122. "Gift" defined. "Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void.

Essential elements of a valid gift

Existing property: The subject of the gift must be identifiable property already in existence. Section 124 separately addresses a purported gift of existing and future property.
Donor and donee: The donor transfers property and the donee receives it. The donor must have the legal capacity and authority to make the transfer. Acceptance may be made by or on behalf of a donee, including through a competent representative where appropriate.
Voluntary transfer: The transfer must be the donor's free act. Fraud, coercion, undue influence and other legally relevant circumstances may affect validity.
Without consideration: A gift is gratuitous. Love and affection may explain the motive, but the transfer must not be in exchange for consideration.
Acceptance: The donee or an authorised person acting on the donee's behalf must accept the gift during the donor's lifetime while the donor is capable of giving.

Acceptance of a gift: timing and evidence

Acceptance is an indispensable requirement of Section 122. It need not invariably be expressed in a separate formal document: depending on the circumstances, acceptance may be inferred from the donee's conduct, custody of the gift deed, possession, enjoyment of benefits or other relevant evidence. Mere execution or registration of a gift deed, however, does not automatically resolve a disputed question of acceptance.

Acceptance must occur while the donor is alive and legally capable of giving. If the donee dies before accepting, the statute expressly declares the gift void. A minor donee may accept through an appropriate guardian or representative, subject to applicable law and circumstances.

How is a gift transferred? Section 123

Section 123 prescribes the mode of transfer. For immovable property, a gift must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For movable property, a gift may be effected either by a registered instrument signed and attested as specified in Section 123 or by delivery in the manner applicable to goods sold. Applicable personal-law rules and statutory exceptions must also be considered, particularly Section 129.

Difference between gift, sale and will

Gift: A transfer without consideration requiring acceptance under Section 122, with the applicable mode of transfer under Section 123.
Sale: A transfer of ownership in exchange for a price, governed principally by Section 54 of the Act.
Will: A testamentary disposition intended to take effect after death; it is not an inter vivos gift under Section 122 and is governed by separate succession rules.

Related provisions in Chapter VII

Section 123: How a gift is effected.
Section 124: Gift of existing and future property.
Section 125: Gift to several donees where one does not accept.
Section 126: Circumstances in which a gift may be suspended or revoked.
Section 127: Onerous gifts.
Section 128: Universal donee.
Section 129: Savings concerning donations mortis causa and Muhammadan law; its application depends on the relevant law and facts.

Illustrative situations

Example 1: A voluntarily executes and registers a properly attested deed gifting a house to B without payment. B accepts the gift during A's lifetime. Subject to other applicable legal requirements, the transfer can satisfy Sections 122 and 123 even where immediate physical possession is not handed over.

Example 2: A signs a gift deed in favour of B, but B does not accept it during A's lifetime. Acceptance attempted for the first time after A's death cannot fulfil Section 122.

Official legal text and practical checks

Refer to the Transfer of Property Act, 1882 (India Code) and read Chapter VII in full. For an immovable-property gift, check the donor's title and capacity, the description of the property, the donee's acceptance, attestation, registration, and applicable stamp-duty and State requirements. Particular transactions may be governed by personal laws or special statutes.

This article describes the general statutory framework. The legal effect of a particular gift depends on the instrument, evidence of acceptance and applicable law.