Gift

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Introduction

Gift is a Transfer of Property and is dened in Section 122 of the Transfer of Property Act, 1882. It is a unique transfer of property in the sense that it involves no consideration. The asic essence of a !ift is the co"plete asence of consideration#1$. The la% of !ifts i n India is !overned y Sections 122 to 12& of the Transfer of Property Act, 1882. 'o%ever (oha""edan !ifts are su)ect to the rules of (usli" *a% and the Transfer of Property Property Act, 1882 is not applicale to such !ifts.  The di+erences et%een et%een the (usli" *a% of !ifts and the la% of !ifts under under the Transfer Transfer of Property Property Act arent arent very !reat. Apart fro" a fe% "inor di+erences o%in! to reli!ion and custo" the asic essence and concept of a !ift is the sa"e under oth syste"s of la%.  There cannot cannot e too "any di+erences di+erences et%een !ifts !ifts under di+erent di+erent syste"s of la% as the denition of of a !ift is very clear and there is a %ell-settled consensus as to %hat the essential ele"ents of a !ift are. To have too "any di+erences et%een the la%s of !ifts "i!ht interfere %ith the funda"entals of the concept of a !ift and !ive the transaction a di+erent colour. or e/a"ple there is a consensus a"on!st al"ost all syste"s of la% that a !ift involves no consideration and involves the ele"ents of voluntary !ivin! and acceptance follo%ed y possession in the hands of the donee ie. the person %ho accepts the !ift fro" the donor ie. the person %ho !ives the !ift. This consensus is al"ost universal and %ill re"ain unchan!ed. In this pro)ect a co"prehensive co"parative study and analysis of Gifts under the Transfer Transfer of property Act, 1882 and (oha""edan !ifts has een perfor"ed. This pro)ect rst deals %ith Gifts under the Transfer of Property Property Act. It e/plains and analyses the various sections dealin! %i th !ifts %ith reference to appropriate case la%. The study of Hiba or a (oha""edan !ift %ith reference reference to the various rules of (oha""edan la% relatin! to !ifts and )udicial interpretation interpretation also for"s an inte!ral part of the pro)ect. This pro)ect also deals %ith a donatio mortis causa or causa  or a !ift "ade in conte"plation of death %ith reference to the Indian Succession Act, 1&20. In order to achieve a !reater understandin! of the concept of !ifts the transaction of !ift has een co"pared and di+erentiated fro" other for"s of transfer of property. The pro)ect also co"pares the la% of !ifts under the Transfer Transfer of Property Act, 1882 and the (usli" *a% of !ifts. This part of the pro)ect is e/tre"ely i"portant as it is here that the conict et%een (oha""edan !ifts and Gifts under the Transfer of  Property Property Act, 1882 is discussed. The researcher has endeavoured to study the conict in !reat detail fro" various vie%points and has also !iv en so"e su!!estions aout the sa"e.  The ri!ht to !ift a%ay a%ay ones property property %hether %hether "ovale or i""ovale is an i"portant i"portant ri!ht and an i"portant ele"ent of property la%. Althou!h a !ift involves no consideration in the le!al sense it involves the consideration of love, a+ection, spiritual and reli!ious enet etc. %hose i"portance cannot e overlooed.  Thus the la% relatin! relatin! to !ifts has has a hu"ane ele"ent in it and as such the la% la% of !ifts should should e clear and una"i!uous %ithout any scope for "isuse and controversy. This o)ective "i!ht e idealist ut ulti"ately the la% relatin! to !ifts should al%ays strive to protect the interests of the donee, donor and the property involved in the !reater interests of )ustice. •

Research Methodology

Aims and Objectives  The ai" of this Pro)ect Pro)ect is to provide provide a co"prehensive co"prehensive analysis and co"parison co"parison et%een Gifts Gifts under the  Transfer  Transfer of Property Property Act, 1882 and and (oha""edan Gifts. Gifts. The pro)ect pro)ect ai"s at e/plainin! and and analy3in! the relevant provisions of the Transfer Transfer of Property Act, 1882 and also understandin! the rules of (usli" *a% relatin! to !ifts. The pro)ect also ai"s at di+erentiatin! Gifts fro" other for"s of Transfer of Property and studyin! !ifts under the Succession Act. The controversy controversy re!ardin! the interpretation of section 12& of the  Transfer  Transfer 4f Property Property Act, 1882 has has also een hi!hli!hted hi!hli!hted in the pro)ect and su!!estions to to end the controversy et%een 'ia and the Transfer of Property Act, 1882 have also een !iven.

Nature of project

 The pro)ect is descriptive as %ell as analytical in nature. 'o%ever the "a)ority of the pro)ect is analytical in nature.

Sources Of Data  The sources of data used are "ainly secondary in nature. A host of leadin! te/toos on Property *a% as %ell as case reporters lie All India 5eporter 6A.I.57, Supre"e ourt ases 6S7 etc. and )ournals lie Annual Survey of Indian *a% have een referred to.

Scope and imitation  The scope of this pro)ect is li"ited to the la% of !ifts prevailin! in India only. Areas of focus and concentration have een the provisions of the Transfer of Property Act, 1882 relatin! to !ifts and the rules of (usli" *a% relatin! to !ifts in India. 4%in! to the vastness and co"ple/ity of the rules under (usli" *a% )ust the asic concepts and funda"entals of the la% of !ifts have een focused upon.

Research !uestions  The research questions are9 •

:hat is a !ift under (usli" *a% and the Transfer of Property Act;

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:hat are the concepts of property associated %ith !ifts;

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:hat are the various aspects of Property la% that "usli" *a% and the Transfer of Property Act deal %ith in relation to !i fts and ho% are these various aspects dealt %ith; :hat are the di+erences et%een (aho"edan !ifts and Gifts under the Transfer of Property Act, 1882; :hat are the "ain issues in the controversy and conict et%een the Transfer of Property Act, 1882 and the (usli" *a% of Gifts;

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'o% has this controversy een dealt %ith ;

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'o% can this conict e resolved so as to prevent in)ustice of any sort;

Mode of "itation A unifor" "ode of citation has een adopted throu!hout the pro)ect.

· #ifts $nder %he %ransfer Of &roperty Act' ())* Section (** of the Transfer of Property Act, 1882 denes a Gift as < =#ift is the transfer of certain e+isting movable or immovable property made voluntarily and ,ithout consideration' by one person' called the donor' to another' called the donee' and accepted by or on behalf of the donee .>

In ordinary le!al e+ect there cannot e a !ift %ithout a !ivin! or tain!. The !ivin! or tain! are t%o conte"poraneous, reciprocal acts, %hich constitute a !ift. The essential ele"ents of a !ift are9#2$ •

 The Asence of onsideration

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 The ?onor

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 The ?onee

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 The Su)ect (atter

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 The Transfer

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 The Acceptance

Absence of "onsideration  The concept of Gift is dia"etrically opposed to any presence of consideration or co"pensation. The essence of a !ift is that it is a !ratuitous transfer. @lacstone says =Gifts are al%ays !ratuitous, !rants are upon so"e consideration or equivalent.>#$ The %ord Bvoluntarily in Section 122 of the Transfer of Property Act, 1882 is used in its popular sense denotin! the e/ercise of unfettered %ill and not in its technical sense of B%ithout consideration. #C$ In Shakuntala v. State of Haryana [5] the Supre"e ourt stated that i t is one of the essential require"ents of a !ift that it it should e "ade y the donor B%ithout consideration. The %ord consideration has not een dened in the Transfer of Property Act, 1882 ut %e have no dout that it has een used in the Act in the sa"e sense as in the Indian ontract Act, 18D2 and e/cludes natural love and a+ection. If it %ere to e other%ise a transfer %ould really a"ount to a sale or an e/chan!e for each party %ill have the ri!hts and e su)ect to the liailities of a seller as to %hat he !ives and have the ri!hts and e su)ect to the liailities of a uyer as to %hat he taes. It is the essence of a !ift that it should e %ithout consideration. The principles laid do%n in the Indian ontract Act,18D2 relatin! to free consent %ould apply i n deter"inin! %hether a !ift is voluntary. *a% as to undue inuence is the sa"e i n the case of a !ift inter vivos as in the case of a contract. In Shakuntala v. State of Haryana  [6] it %as held that a !ift "ade under undue inuence and not voluntarily %as void. The court stated that %hile tryin! a case for undue inuence it "ust consider t%o thin!s9 6a7 :hether the relation et%een the donor and donee is such that the donee is ale to do"inate the %ill of the donor. 67 'as the donee used that position to otain an undue advanta!e over the donor;

Donor  The donor is the person %ho !ives. Any person %ho is sui juris can "ae a !ift of his property. A "inor, ein! inco"petent to contract is inco"petent to transfer and a !ift y the "inor %ould therefore e void. Trustees cannot "ae a !ift out of trust property unless authori3ed y the ter"s of the trust.#D$

Donee  The donee is the person %ho accepts the !ift. A !ift "ay e accepted y or on ehalf of a person %ho is not co"petent to contract. A "inor "ay therefore e a doneeE ut if the !ift is onerous, the oli!ation cannot e enforced a!ainst hi" %hile he i s a "inor. The donee "ay e a person unale to e/press acceptance. Thus a !ift can e "ade to a child en ventre sa mere and could e accepted on its ehalf#8$. The donee "ust e an ascertainale person and so the pulic cannot e a donee under Section 122 of Transfer of Property Act, 1882. Gift to an unre!istered society and a transfer of property to God is also not a valid !ift %ithin the "eanin! of Section 122. In Shri Ram Krishan Mission v. Dogar Singh [9] dedication of property y a 'indu to a dhar"asala %as held not to e a !ift as the donee %as not a l ivin! person.

Subject Matter

 The su)ect "atter of the !ift "ust e certain e/istin! "ovale or i""ovale property. It "ay e land, !oods or actionale clai"s. It "ust e transferale under Section F of the Transfer of Property Act, 1882. 'o%ever it cannot e future property. A !ift of a ri!ht of "ana!e"ent is valid ut a !ift of future revenue of a villa!e is invalid. The release of a det is not a !ift as it does not involve a transfer of property ut is "erely a renunciation of a ri!ht of action. 'o%ever an actionale clai" such as an insurance policy "ay e the su)ect of a !ift. In a !ift deed the " eanin! of the %ord "oney should not e restricted y any hard and fast rule ut should e interpreted havin! re!ard to the conte/t properly construed in the li!ht of all relevant facts#1$.

%ransfer  This ele"ent of a !ift is e/plained later in the conte/t of Section 12 of the Transfer of Property Act,1882 in this section.

Acceptance In order to constitute a valid !ift the pivotal require"ent is acceptance. In N.M Thakker v. .M Thakker   [11] it %as held that the e/ecution of a re!istered !ift deed, acceptance of the !ift and delivery of the property to!ether "ae the !ift co"plete. Ho particular "ode of acceptance is required. ircu"stances of the case %ill deter"ine the "ode of acceptance. A transaction of !ift in order to e co"plete "ust e accepted y the donee durin! the lifeti"e of the donor. If the donor dies efore acceptance the !ift eco"es void. actu" of acceptance can e estalished y di+erent circu"stances such as donee tain! possession of the property or ein! in possession of the !ift deed alone.#12$

%rusts An interpretation of Section 122 %ill reveal that a !ift "ay e "ade y the equitale "achinery of a trustE and the interposition of the trustees enales a !ift to e "ade to a person not yet in e/istence and therefore incapale of ein! the donee of a direct !ift.

Section (*- of the Transfer of Property Act, 1882 states ho% the transfer of a !ift is e+ected. This Section "ay e studied under the follo%in! heads9

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Mode of Transfer- Immovable Property 

A !ift of i""ovale property, no "atter %hat the value of the property, can only e "ade y a re!istered instru"ent. This provision e/cludes every other "ode of transfer and even if the intended donee is put in possession a !ift of i""ovale property is invalid %ithout a re!istered instru"ent.#1$ •

Signatres

 The !ift deed "ust e si!ned y or on ehalf of the donor in order to e+ect transfer. (erely the si!nature of the intended donee on the !ift deed %ill not e+ect the transfer.#1C$ •

 !ttestation

A !ift deed "ust e attested y at least t%o %itnesses and a !ift deed not attested y %itnesses is void. The essential conditions of a valid attestation under Section  of the Transfer of Property Act, 1882 are that, t%o or "ore %itnesses "ust have seen the e/ecutant si!n the instru"ent or have received fro" hi" personal no%led!e of his si!nature, and %ith a vie% to attest or to ear %itness to this fact, each of the" has si!ned the instru"ent in the presence of the e/ecutant. In !rij Raj singh v. Se"ak Ram [15] it %as held that no particular for" need e follo%ed fore attestation of a !ift deed. In this case a !ift deed %as e/ecuted y the ori!inal o%ner, presented for re!istration y a duly authori3ed po%er of attorney and attested y t%o

%itnesses. It %as held to e valid. Attestation %as proved y one of the %itnesses y cate!orically statin! that he had suscried his si!natures on the !ift deed in three di+erent capacities ie. Scrie, attestin! %itness and identifyin! %itness efore the re!istrar. •

"egistration

 The %ord B5e!istered in this Section does not "ean re!istered in the lifeti"e of the donor. If the other conditions to the validity of the !ift are co"plied %ith the death of the donor is not a !round for refusin! re!istration. If a !ift of i""ovale property is "ade y a re!istered instru"ent that is duly re!istered then the pre-e/istin! ri!ht, title and interest of donor stand divested in the doneee y the operation of Section 1D of the Indian 5e!istration Act, 1&8. In Ku##us"ami $hettiar v. %. $hettiar  #1F$ it %as held that a re!istered instru"ent styled as a release deed releasin! ri!ht, title and interest of releasor %ithout consideration "ay operate as transfer y %ay of !ift %hen the docu"ent clearly sho%s intention to e+ect transfer and is si!ned y or on ehalf of releasor and attested y at least t%o %itnesses. A !ift of i""ovale property, %hich is not re!istered, is ad in la% and cannot pass any title to the donee. An oral !ift of i""ovale property cannot e "ade under section 12 of the Transfer of Property Act, 1882. In &omtibai v. Mattula [1#] it %as held that "ere intention to !ive a%ay the property is not enou!h to e+ect the transfer of !ift. There has to e a re!istered !ift deed i n order for the !ift to e co"plete in the eyes of la%.  The e+ect of an insuciently sta"ped and unre!istered !ift deed %as considered in !al"ant Singh v. Mehar Singh.#18$ It %as held that an unre!istered !ift deed cannot e used to prove title. It %as also held that under Section F of the Sta"p Act once a !ift deed is ad"itted in evidence it cannot e called into question later on the !rounds of insuciency of sta"p. •

"evo$ation of Gift by %onor 

 The Privy ouncil has laid do%n that after delivery of the deed of !ift and efore re!istration the donor cannot revoe the !ift. In !hagatrai v. &hanshyamdas [19] it %as held that %here a !ift has een e+ected y a re!istered instru"ent duly attested and the !ift has een acted upon y the donee, the title le!ally passes to the donee and cannot e defeated y any intention of the donor to the contrary. •

Mode of Transfer & Movables

:ith re!ard to "ovale property this Section allo%s t%o alternative "odes of transfer vi3. 5e!istered deed si!ned y or on ehalf of the donor and ?eli very of possession.

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%elivery 

In order that a !ift is valid under this section the donor should have done all that he can to put the su)ect "atter of the !ift %ithin the po%er of the donee to otain possession. A valid !ift "ust ordinarily e follo%ed y possession#2$. In !aby %mmal v. Rajan %sari ['1] the court held that there "ust e proof of delivery and possession of the !ifted property. In the asence of such proof the deed cannot e construed to e a !ift deed. In Taraknath v. Sushil $handra Dey   [''] there %as no actual delivery of the possession pursuant to the !ift havin! een "ade. It %as held that the circu"stances did not %arrant physical possession and constructive delivery of the possession %as enou!h to hold the !ift valid. •

 !$tionable (laims

Gift deeds transferrin! actionale clai"s lie shares, insurance policies have een held to e valid. In 'asudev v. ranlal [')] a !ift deed relatin! to shares in a co"pany %as re!istered. It %as si!ned y oth the donor and donee. The donor undertoo to have the shares transferred in the oos of the co"pany to the na"e of the donee. The share certicates and the !ift deed %ere delivered to the donee alon! %ith the lan transfer for"s duly si!ned. @efore the transfer could e e+ected in the oos of the co"pany the donor died. The question arose %hether there %as a co"plete !ift or %hether the donors heirs could clai" the shares. It %as contended that the !ift %ould not e co"plete efore co"plyin! %ith the for"alities prescried y the o"panies Act, 1&0F. The Supre"e ourt held that the require"ents of the Transfer of

Property Act, 1882 %ere fully satised and the donee %as clothed %ith a ri!ht to !et his na"e entered in the co"panys oos as the donee. This ri!ht %ould prevail over the clai"s of the heirs of the donor. •

*+tent 

 This Section does not apply to territories e/cluded fro" the operation of the Indian 5e!istration Act, 1&8.

Section (*. of the Transfer of Property Act, 1882 states that a !ift of future property is void. There cannot e a !ift of future property for such a !ift can only e a pro"ise and a pro"ise not supported y consideration is invalid as a contract. There cannot e a !ift of future property either under 'indu or (oha""edan la%. In $(T v. R.S &u#ta [',] the court laid do%n that in order to constitute a valid !ift there "ust e e/istin! property. In this case a !ift %as !iven y instructin! a non anin! co"pany, r" or 'indu Jndivided a"ily in %hich the donor had an account to !ive e+ect to the !ift y deitin! his account and creditin! the account in the na"e of the donee. It %as held that "ere entries in the oos of account %ould not constitute a valid !ift unless the co"pany, r" or 'indu Jndivided a"ily has sucient cash in hand or overdraft facilities %ith any an. The court decided that on facts the !ift in question %as invalid in asence of cash alance or overdraft facilities in the co"pany. Section (*/ of the Transfer of Property Act,1882 applies only %hen the !ift is to t%o or "ore donees as tenants in co""on. The refusal of one donee %ill not prevent the !ift tain! e+ect as re!ards the share of the others. Section (*0 of the transfer of Property Act, 1882 lays do%n that conditional !ifts are allo%ed y la%. The require"ents as to validity of conditions are9#20$ •

A condition should not e va!ue.

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A condition should not e inherently i"possile of perfor"ance.

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 The condition should not e ille!al.

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 The condition should not e i""oral.

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 The condition should not e opposed to pulic policy.

If the conditions attached to a !ift, %hether as conditions precedent or as conditions susequent, satisfy the require"ents "entioned aove, they are valid and can e !iven e+ect to. If there is a valid condition precedent, the !ift %ill not tae e+ect until the condition is fullled. If there is a valid condition susequent, the !ift ceases %hen the condition is satised. In N.M Thakker v. .M Thakker   ['6] a conditional !ift deed %as e/ecuted y %hich possession and en)oy"ent of the property %ere retained durin! the donors lifeti"e.  There %as no recital of acceptance and no evidence in proof of acceptance. The !ift %as to eco"e operative after the death of the donor. A susequent deed %as e/ecuted y the donor %ithin a "onth cancelin! the !ift deed o%in! to non-full"ent of conditions su)ect to %hich there %as an oral understandin! et%een the donor and donee. The court held that the !ift deed %as validly cancelled o%in! to non fulll"ent of the conditions. A 5esu"ale Gift is one %hich is revocale at any ti"e at the "ere %ill of the donor. Such a !ift is void ainitio.#2D$

Section (*1 of the Transfer of Property Act, 1882 deals %ith 4nerous Gifts. The e+ect of an onerous !ift is that the donee is liale to the e/tent of the !ifted property in his hands to "eet the oli!ation %ith %hich the !ift is urdened. This section !rants a "inor the ri!ht to repudiate an onerous !ift after attainin! "a)ority. Accordin! to Section (*) of the Transfer of Property Act, 1882 a universal donee is a donee %ho receives the %hole of the donors property y %ay of !ift. 4n a plain readin! of this section it is clear that the liaility of the universal donee is to the e/tent of the property acquired y hi" y virtue of the !ift deed fro" the donor ho%ever in reality Section 128 fastens the personal liaility upon the universal donee for all dets due y the donor at the ti"e of the !ift.

Section (*2 of the Transfer of Property Act, 1882 e/cludes (oha""edan *a% of !ifts and !ifts "ade in conte"plation of death fro" the purvie% of the la% of !i fts in the Transfer of Property Act, 1882. This section is e/tre"ely controversial and its constitutionality has een challen!ed. It has een discussed in !reater detail later in this pro)ect.

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Mohammedan #ifts Or 3iba

A Hiba or a !ift under (usli" la% li terally "eans 4the donation of a thing from ,hich the donee may derive bene5t67 K"inent )urists of (usli" la% have dened !ift in various %ays. So"e of the i"portant denitions of Hiba or !ift are9#28$

M$A 9 Gift is a transfer of property, "ade i""ediately and %ithout any e/chan!e, y one person to another, and accepted y or on ehalf of the latter. 89:;; 9 Hiba is the i""ediate and unqualied transfer of the corpus of the property %ithout any return. A In &hulam %hmed Su2 v. Mohammed Sidi/ Dareel [5#] the ull @ench of the La""u and Nash"ir 'i!h ourt %as ased to "ae an = authoritative pronouncement> on the proposition of la% =if in vie% of sections 12 and 12& of the Transfer of Property Act, 1882 the (usli" *a% on the question of !ifts stands superseded and %hether it is necessary that there should e a re!istered instru"ent as required y sections 12 and 12& of the Transfer of Property Act, 1882 in the case of !ifts "ade under (usli" *a%. 4n a revie% of the case la% and a close e/a"ination of the %ordin! of section 12& of the Transfer of Property Act, 1882 the court ans%ered oth the questions in the ne!ative. It pronounced that Sections 12 and 12& of the Transfer of Property Act, 1882 did not supersede (usli" *a% relatin! to oral !ifts and that a re!istered instru"ent %ould not e necessary for a !ift under (usli" *a%. Accordin! to the court only if an instru"ent %as e/ecuted and its e/ecution %as conte"poraneous %ith the "ain! of the !ift, the instru"ent should e re!istered as provided in Section 1D of the Indian 5e!istration Act, 1&8. This decision of the court, %hich it called an authoritative pronounce"ent, %as a "ere restate"ent of %hat is undoutedly settled la% on the point at issue. The court itself referred in its )ud!"ent to the identical decisions in several earlier cases of other courts %hich fortied its pronounce"ent. In !ibi Maniran v. Mohammad (sha/ue [54] a ?ivi sion @ench of the Patna 'i!h ourt re)ected the ar!u"ent that Section 12& of the Transfer of Property Act, 1882 violated Article 1C of the onstitutionE the court held that the classication et%een (oha""edans and others %as reasonale, havin! re!ard to the %ell no%n funda"ental di+erences et%een the reli!ion and custo"s of (oha""edans on one hand and the reli!ion and custo"s of others. In Makku Ra"ther v. Manaha#ara $harayil [59] it %as held that Section 12& of the Transfer of Property Act, 1882 %as ultra vires the onstitution if it %as held applicale to all (oha""edan !ifts and should therefore e construed as li"ited to (oha""edan !ifts of a charitale or reli!ious nature. Lustice Nrishna Iyer in his  )ud!"ent stated that =secular> (oha""edan !ifts are di+erent fro" (usli" !ifts of a =reli!ious> nature and such =secular> !ifts should confor" to the require"ents of %ritin!, attestation and re!istration as laid do%n in Section 12 of the Transfer of Property Act, 1882 in order to survive the scrutiny of Article 1C of the onstitution. @y classifyin! (usli" !ifts into secular and reli!ious cate!ories this )ud!"ent i"ported into the faric of Isla"ic la% so"ethin! %hich %as hitherto unno%n. In his )ud!"ent Lustice Nrishna Iyer said that (usli" )urists do not !ive any hint any%here of any taoo of a Mussalman reducin! a !ift to %ritin!, to !et it attested or to !et it re!istered y any pulic authority. 'e also asserted that there is asolutely no conict et%een Section 12 of the Transfer of Property Act, 1882 and the rules of (usli" *a% e/cept "ay e %here reli!ious or charitale !ifts are "ade. Seen in this conte/t it is not )ustiale to classify various co""unities for purposes of docu"entation, attestation and re!istration of purely secular !ifts.  Lustice Nrishna Iyers )ud!"ent !oes a!ainst the settled la% in India on the point of the conict et%een (uli" *a% and the Transfer of Property Act, 1882 %ith respect to !ifts and has co"e under severe criticis". It is i"possile to distin!uish et%een reli!ious and secular !ifts ecause 'indu and (oha""edan la%s are

so inti"ately connected that they cannot e readily dissevered fro" it. (oreover Lustice Nrishna Iyers classication of !ifts into reli!ious and secular !oes a!ainst the nor"s of interpretin! (usli" la% and if such classication %as adhered to it %ould shae the funda"entals of (usli" *a%. It is of e/tre"e i"portance to loo at this controversy fro" another vie%point. 5e!istration of a !ift deed is not an anti-reli!ious or sacrile!ious act. It does not interfere %ith the oservance of reli!ious rites. It ensures a proper authentic record of the property transaction, %hich is ulti"ately enecial to the parties the"selves. As the (usli" )urists have the"selves acno%led!ed in their denitions, hiba is re!arded as a part of the la% of contractE the concept of contract underscores the concept of hiba. Lust as other sales and contracts y (usli"s are su)ect to the civil la%s of the country, there is nothin! unusual in coverin! these transactions also under the ordinary civil la%s. The only !rud!e can e on account of the require"ent of re!istration fees ut no (oha""edan )urist has clai"ed or )ustied i""unity fro" secular ta/ation. An e/e"ption fro" so"e le!al for"alities should e clai"ed in such areas %here it is essential to eep intact reli!ious rites, cere"onies or oservances of essentially reli!ious character. Too "uch insistence on i""unities fro" !eneral la%s of the land reeds separatist tendencies. Instead of advancin! hair-splittin! ar!u"ents to clai" i""unity, the (usli" society should %illin!ly co"e for%ard to clai" "a/i"u" inte!ration %ith the !eneral le!al syste" of the country. •

"onclusion

'avin! studied and co"pared the (oha""edan la% of !ifts and !ifts under the Transfer of Property Act, 1882 it can e accurately said that the "ost si!nicant issue in India today re!ardin! the la% of !ifts is the interpretation of Section 12& of the Transfer of Property Act, 1882 and the applicaility of the provisions of the Act to the hiba or (oha""edan !ifts. The courts in India have upheld the constitutionality of Section 12& of the Transfer of Property Act, 1882 and have interpreted it to "ean that the provisions of the Transfer of Property Act, 1882 shall not apply to (oha""edan !ifts and (oha""edan !ifts %ill e solely !overned y the rules of (usli" la%. 'o%ever Lustice Nrishna Iyers )ud!"ent %hich has !one a!ainst the settled la% of the land and held the Transfer of Property Act, 1882 to e applicale to (usli" !ifts of a secular nature has co"e under severe criticis" ut has raised questions too re!ardin! the har"ony of la%s relatin! to !ifts.  Lustice Nrishna Iyers vie%s on the la% relatin! to !ifts are too drastic and if upheld %ould shae the funda"entals of (usli" la%.  The present situation of e/tre"e uncertainty overshado%in! the la% of hiba rin!s no credit to Indian  )urisprudence. It creates !reat diculties and ha3ards for "usli"s desirin! to "ae dispositions of their property. It is thus dicult for la%yers to tender !ood advice to their clients or to tae sure step in conveyancin! !ifts. An attitude of callous i ndi+erence, co"pounded %ith inadequate understandin! of a syste" of la% so"eti"es decried as outdated, has led so"e )ud!es, so"eti"es, to pass il l-considered )ud!"ents that have inicted needless in)ustice on parties and created confusion in le!al ad"inistration. It is i"perative that this eld of la% e considered in !reat depth y the Supre"e ourt either in its appellate  )urisdiction or upon a presidential 5eference under Article 1C of the onstitution, in order that clarity, certainty, and rationality, in the conte/t of the needs of conte"porary society, in accord %ith the innate !enius of (usli" *a% and in har"ony %ith the !eneral le!al faric e restored to Indian Lurisprudence in the "atter of !ifts. 'o%ever till this confusion is cleared it is advisale for conveyancers to e on the safe side and satisfy the require"ents of re!istration as envisa!ed y the Transfer of property Act, 1882 and the rules of (usli" *a% in the case of all hibas.  To end this controversy le!islative chan!e is necessary. Such le!islative chan!e should incorporate in the  Transfer 4f Property Act, 1882 the sustance of the hiba as understood y the (usli"s, provide discountenace of oral !ifts not evidenced y re!istration and provide a le!al facility to everyone. This %ill advance an inte!ration of the institutions and la%s relatin! to !ifts in India and rin! aout har"ony. •

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