Section 123 - Transfer How Effected: Gift Deed, Registration and Delivery
Section 123 of the Transfer of Property Act, 1882, under Chapter VII (Of Gifts), prescribes the legal manner in which gifts of immovable and movable property must be effected. It distinguishes compulsory registration and attestation for immovable property from the alternative of delivery for movable property.
Section 123 - Transfer how effected (full text)
123. For the purpose of making a gift of immovable 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 movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
Meaning and requirements of Section 123
1. Gift of immovable property
A gift of land, a house or other immovable property must be effected through a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Mere oral declaration, possession or an unregistered gift deed ordinarily does not satisfy Section 123 for gifts governed by this provision. Registration requirements should also be read with Sections 17 and 49 of the Registration Act, 1908.
2. Gift of movable property
A gift of movable property may be made either through a registered instrument signed as specified in Section 123 or by delivery. The statutory provision allows delivery in the same manner as delivery of goods sold; it does not require every gift of movable property to be registered.
3. Acceptance is also necessary
Section 122 defines a gift as a voluntary transfer of certain existing movable or immovable property without consideration, accepted by or on behalf of the donee. Acceptance must take place during the donor's lifetime while the donor remains capable of giving; if the donee dies before acceptance, the gift is void. Execution and registration alone should not be confused with the statutory requirement of acceptance, which may be established from relevant circumstances.
4. Attestation and registration
Attestation involves witnessing the execution or acknowledgment of the donor's signature in the legally prescribed manner; the definition in Section 3 of the Transfer of Property Act is relevant. A deed involving immovable property should be presented and registered under applicable registration law, subject to the particular facts and any applicable statutory exception.
Practical illustrations
Immovable property: If A voluntarily gifts a house to B, the transfer under Section 123 requires a registered gift instrument signed by or on behalf of A and attested by at least two witnesses, together with valid acceptance under Section 122.
Movable property: If A gifts a movable article to B, the gift may be effected by delivery, provided the gift otherwise meets the requirements of Section 122.
Important statutory qualification
Section 129 saves donations made in contemplation of death and preserves rules of Mohammedan law. Accordingly, Section 123 should not be described as overriding all legally recognised modes of gift irrespective of applicable personal law. State amendments and other special laws may also require consideration in a particular transaction.
Frequently asked questions
Is registration compulsory for a gift of land or a house?
For a gift governed by Section 123, yes. A registered instrument signed by or on behalf of the donor and attested by at least two witnesses is required.
Can movable property be gifted without a registered deed?
Yes. Section 123 expressly permits transfer by delivery as an alternative to a registered instrument.
Does a registered gift deed remove the need for acceptance?
No. The requirement of acceptance is contained in Section 122 and must also be satisfied.
Official legal resources
Consult the India Code legislative database for the Transfer of Property Act, 1882 and the Registration Act, 1908. See also the Transfer of Property Act overview and Section 124 - Gift of existing and future property.