GIFT
AS PER SECTION 122 TO 129 OF TRANSFER OF PROPERTY ACT, 1949
As per section 122. “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable 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.
- The person making gift –Donor
- The person receiving gift – Donee
Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is till capable of giving, If the donee dies before acceptance, the gift is void.
Transfer how effected.—
As per section 123. For the purpose of making a gift 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. 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.
Gift of existing and future property.—
As per section 124. A girt comprising both existing and future property is void as to the latter.
Gift to several, of whom one does not accept
As per section 125.—A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.
When gift may be suspended or revoked.—
As per section 126. The donor and done may agree that on the happening of any specified event which does not depend on the will of the donor a it shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere well of the donor is void wholly or in part, as the case may be. A gift also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
- HOW GIFT MADE EFFECTED
- Gift of movable property – The transfer may effected by registered instrument or by
- Gift of immovable property – the transfer must be effected only by registered
ONEROUS GIFTS.—
As per section 127. Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burdened by an obligation, the done can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the done is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous. Onerous gift to disqualified person.—A done not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.
Onerous gift refers to a gift that is subject to conditions. These conditions are imposed on the recipient of the gift. Sometimes, onerous gift takes the nature of a sale because it involves the element of consideration. The donee is at a liberty to accept it or not. Onerous means “burdened with obligation“. Obligation here means debt, interestetc. on the property. Gift is defined under section 122 which means transfer of existing immovable or movable property without consideration. So, Onerous gift is when one person transfer several gifts, i.e., more than one gifts to another in a single transfer, out of these gifts one is not burdened by obligation but other is burdened with obligation, so here donee has to accept in full, he cannot accept one which is beneficial and reject burdened with obligation. But where gift is in the form of two or more separate and independent gifts to same person off several things, then donee can accept one and reject other because the gift is not in single transfer but independent transfer.
Example: “K” transfer two gift shares X and Y to “L” in a single transfer. X is the share of prosperous company and Y is share of sinking company. “L” refuses to accept gift Y. So “L” cannot take X gift also.
Difference between Business Gift and Bribe is subtle to understand.
Basic difference is:
Gift is given to someone without any expectation in return. Value of gift are often based on closeness in relation, time of gifting, economic condition of giver and receiver.
Bribe is given with expectation of favour toward giver. Its economic value are incoherent to closeness in relation, timing (inappropriate timing) and costly. Business gifts may be a Costly Cricket match ticket, desk clock, sweets or even a cash envelope. Timing of such gifts makes them bribe. Suppose a gift from someone just before you are going to roll-out a tender, a calendar and desk accessories with bold name of pharma companies to doctor. Such things are actually bribe and not gift. Many MNC organisations have come up with norms and structures already. Some norms which are still needed are:
Reporting to department about any gifts that is received from whom, value and date details. This part is already applicable to judicial judges in India.
Any gifts above certain monetary values should be avoided.
No gifts received with brand name should be put on desk as it will tarnish the image of official/public servant for lenient toward certain brand.
Provision of filing gift tax by receiver. IT department should tally the gift received as mentioned in department books and filed by receiver. Failure to file tax for gift should be taken seriously.
Scrutiny of gifts received by officials regularly and checking of property declaration regularly. Repeated gift from same person should be brought under Directorate Enforcement radar.
Bribes are complex things for the receiver because it puts him into a moral dilemma for how to return the favor and makes them corrupt once they receive it.
