September 2019

CAN A GIFT BE TAKEN BACK?

DR. Anup P. Shah
Chartered Accountant

Introduction

A gift is a transfer of property, movable or immovable, made voluntarily and without consideration by a donor to a donee. But can a gift which has been made be taken back by the donor? In other words, can a gift be revoked? There have been several instances where parents have gifted their house to their children and then the children have not taken care of their parents or ill-treated them. In such cases, the parents wonder whether they can take back the gift which they have made on grounds of ill-treatment. The position in this respect is not so simple and the law is very clear on when a gift can be revoked.

 

LAW ON GIFTS

The Transfer of Property Act, 1882 deals with gifts of property, both immovable and movable. Section 122 of the Act defines a gift as the transfer of certain existing movable or immovable property made voluntarily and without consideration by a donor to a donee. The gift must be accepted by or on behalf of the donee during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, then the gift is void. In Asokan vs. Lakshmikutty, CA 5942/2007 (SC), the Supreme Court held that in order to constitute a valid gift, acceptance thereof is essential. The Act does not prescribe any particular mode of acceptance. It is the circumstances of the transaction which would be relevant for determining the question. There may be various means to prove acceptance of

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