Gift Under the TPA: Why a Gift Revocable at the Donor's Own Will Is No Gift at All

Can a person gift property and still keep the right to take it back whenever they feel like it? The Transfer of Property Act, 1882 says no, and understanding exactly why reveals the real logic behind Sections 122 to 129, the provisions governing gifts. A gift is meant to be a genuine, completed transfer, not a conditional loan dressed up in generous language, and the Act's rules on acceptance, revocation, and onerous gifts all exist to enforce that basic distinction.

What Makes a Gift a Gift

Section 122 defines a gift as 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. Three elements sit at the core of this definition. The transfer must be voluntary, made with the donor's free and genuine consent. It must be without consideration, distinguishing a gift sharply from a sale or exchange. And it must actually be accepted by the donee, acceptance is not a mere formality, it is an essential ingredient without which no valid gift comes into existence at all.

The Property Must Already Exist

A gift can cover both movable and immovable property, and can extend to tangible as well as intangible property, including actionable claims or mortgage interests. But two conditions are essential. First, the property must actually be in existence at the date the gift is made, a gift of future property, something that does not yet exist, is void as to that future property. Second, the property must be transferable within the meaning of Section 6 of the Act, the general transferability provision discussed elsewhere in the TPA. A gift, like every other transfer under the Act, also requires that the donor genuinely divest themselves of their absolute interest in the property and vest that interest fully in the donee, nothing less than genuine ownership can be validly transferred by way of gift.

Acceptance Must Happen During the Donor's Lifetime

This is one of the most frequently tested rules connected to gifts. Section 122 requires that acceptance of the gift be made during the lifetime of the donor, and while the donor is still capable of giving. If the donee dies before accepting the gift, the gift is void entirely. This means both donor and donee must genuinely be living persons at the relevant time, the legal representatives of a donee who dies before the gift was accepted cannot step in and accept the gift on the deceased donee's behalf. Acceptance itself may be express, such as a clear statement of acceptance, or implied, inferred from the donee's conduct, such as taking possession of the gifted property. Courts have also clarified a related, practically useful point, if the gift has genuinely been accepted by the donee, but the donor dies before the deed is formally registered, the registration itself can still be completed even after the donor's death, since the substantive gift, donor's intention plus donee's acceptance, was already validly completed.

Read Blog: The Industrial Disputes Act protects the rights of individual workmen and provides remedies for certain employment-related disputes. Read our detailed blog to understand the key provisions and legal principles.

Gifts to Multiple Donees

Section 125 addresses what happens when a gift is made to two or more donees, and one of them does not accept it. In such a case, the gift is void only as to the interest that non-accepting donee would have taken, had they actually accepted, while the gift remains valid as to the shares of the donees who did accept. This rule prevents one recipient's refusal from unravelling the entire gift for everyone else named in it.

Suspension and Revocation Under Section 126

Section 126 permits the donor and donee to agree that a gift shall be suspended or revoked upon the happening of a specified future event, but this agreement is subject to one crucial limitation, the specified event must not depend on the will of the donor. Where parties agree that a gift shall be revocable wholly or in part simply at the mere will or pleasure of the donor, that stipulation is void, and the gift itself becomes void to that same extent, wholly or in part, as the case may be. This is the exact answer to the question this piece opened with, a donor cannot retain an open-ended, unilateral power to take back a gift whenever they choose, doing so contradicts the very idea of a completed, voluntary transfer, and the law simply refuses to give effect to such a condition. The event triggering suspension or revocation must instead be a genuine future contingency beyond the donor's own control. Separately, Section 126 also allows a gift to be revoked on any ground on which, if it were a contract, it might be rescinded, drawing directly on Section 19 of the Indian Contract Act, 1872, meaning a gift procured through coercion, undue influence, fraud, or misrepresentation can be revoked on that basis, since such a gift was never truly voluntary in the first place. It is worth noting that these revocation provisions under Section 126 apply specifically to a gift that has already been completed, an incomplete gift, one where the essential requirements were never actually fulfilled, can simply be treated as never having validly come into existence at all, rather than needing formal revocation.

Choosing the right Judiciary Exam books can make your preparation more focused and effective. Refer to standard bare acts, recommended law books, and reliable practice materials to strengthen concepts and improve answer writing. 

Onerous Gifts Under Section 127

A gift is not always a pure benefit, sometimes it comes bundled with an attached burden or obligation, what the Act calls an onerous gift. Section 127 provides that where a donee accepts such a gift, they are bound to bear the burden attached to it, reflecting the underlying principle, sometimes expressed in the maxim qui sentit commodum sentire debet et onus, that a person who takes the benefit must also bear the associated burden. Where a single transfer includes several distinct properties, some burdened and some not, and one donee receives all of them, they cannot selectively accept the beneficial parts while rejecting the burdened parts, if they reject the onerous portion while accepting the beneficial one, the entire gift becomes void. Where the gift consists of two or more separate and independent gifts made to the same person by the same deed, however, the donee is free to reject one and accept another.

The Universal Donee Under Section 128

Section 128 addresses the situation where a gift consists of the donor's entire property, both movable and immovable. The recipient in such a case is called a universal donee, and Section 128 provides that such a donee becomes personally liable for all the debts and liabilities of the donor existing at the time the gift was made, to the extent of the property comprised in the gift. This protects the donor's existing creditors from being defeated simply because the donor chose to give away their entire estate to a single recipient, the universal donee effectively steps into the donor's shoes for purposes of those pre-existing obligations.

What Section 129 Excludes

Section 129 carves out two important exceptions where the ordinary TPA rules on gifts, including the requirement of registration, simply do not apply. The first is a donatio mortis causa, a gift made by a person in contemplation of, and in expectation of, their own impending death, governed by separate principles rather than by Chapter VII of the TPA. The second is any gift governed by Muslim personal law, where the requirements for a valid gift, or hiba, are simply declaration, acceptance, and delivery of possession, with no requirement of a registered instrument regardless of the value of the property involved, a rule that stands in sharp contrast to the general TPA position on gifts of immovable property, and is a frequently tested point of distinction.

Frequently Asked Questions

Q1. What is the definition of a gift under Section 122 of the TPA?

A voluntary transfer of existing movable or immovable property, made without consideration, by a donor to a donee, and accepted by or on behalf of the donee.

Q2. What happens if the donee dies before accepting the gift?

The gift is void, since Section 122 requires acceptance during the lifetime of the donor and while the donor is still capable of giving.

Q3. Can a gift be made revocable at the mere will of the donor?

No. Under Section 126, a stipulation making a gift revocable at the donor's own mere will or pleasure is void, and the gift itself becomes void to that extent.

Q4. On what grounds can a completed gift be revoked under Section 126?

On the happening of a specified future event not dependent on the donor's will, if the parties so agreed, or on any ground that would allow a contract to be rescinded under Section 19 of the Indian Contract Act, such as coercion, undue influence, fraud, or misrepresentation.

Q5. What is an onerous gift under Section 127?

A gift accompanied by an attached burden or obligation, which the donee must bear in full if they choose to accept the gift.

Q6. Who is a universal donee and what liability do they bear under Section 128?

A person who receives the donor's entire property as a gift, becoming personally liable for all the donor's debts and liabilities existing at the time of the gift, to the extent of the property received.

Q7. What does Section 129 exclude from the TPA's gift provisions?

Gifts made in contemplation of death (donatio mortis causa) and gifts governed by Muslim personal law, both of which follow separate rules rather than Chapter VII of the TPA.

Q8. Does a gift under Muslim personal law require registration?

No. Under the rules of hiba, the only requirements are declaration, acceptance, and delivery of possession, with no registration required regardless of the property's value, unlike the general TPA position.

Conclusion

Gift is a compact chapter, but it rewards precision on exactly the points that trip candidates up, when revocation is genuinely valid, what an onerous gift actually obligates the donee to do, and where Muslim personal law departs from the general TPA scheme entirely. Nitesh Sir's TPA sessions at Aashayein Judiciary treat Sections 122 to 129 as a natural companion to the sale and mortgage provisions, since examiners frequently ask candidates to distinguish gift from these other modes of transfer in a single question. If gift law still feels thin in your TPA revision, structured judiciary coaching with focused PYQ practice can help round it out.