Section 123 TPA: Transfer how effected

Section 123 of Transfer of Property Act: Transfer how effected

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Immovable Property Sec 3 Instrument Sec 3 Attested Sec 3 Gift Sec 122

Legal Commentary & Landmark Judgments: Section 123

Section 123 of the Transfer of Property Act, 1882 mandates the statutory formalities for effecting a gift, requiring a registered instrument attested by at least two witnesses for immovable property.

Evidentiary Admissibility Standard: Section 123 enacts strict evidentiary and formal safeguards for gratuitous transfers: 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.
Procedural Mechanism: For gifts of movable property, the transfer may be effected either by a registered instrument or by physical delivery of the property in the same manner as goods sold.

Oral gifts of immovable property, even between close family members or recorded on customary stamp paper, are completely void and convey no title whatsoever.

Key Landmark Precedents:

Gomtbai v. Mattulal (1996) 11 SCC 681: The Supreme Court held that the requirements of Section 123 are mandatory: a gift of immovable property not registered or not attested by two witnesses is void and inadmissible to prove title.
Kalyan Singh v. Chhoti (1990) 1 SCC 266: The Supreme Court held that execution of a gift deed requires proof of attestation under Section 68 of the Indian Evidence Act, requiring at least one attesting witness to be examined in court to prove execution.

Legal Commentary:

Under Section 129, Section 123 does not affect any rule of Mohammedan Law. Under Muslim personal law, a gift of immovable property ('Hiba') does not require a written or registered instrument and is complete upon declaration by donor, acceptance by donee, and delivery of possession.

Section 123: Transfer how effected

Section 123 of Transfer of Property Act: Transfer how effected

Legal Commentary & Landmark Judgments: Section 123