When a person acquires an immovable property, the law also give her/him the right to use, sell, rent, lease, transfer or gift of the land. The owner also has a right to mortgage his immovable property as a security for his loans. Section 5 of the Transfer of Property Act 1882 defines the transfer of property as “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and ‘to transfer property’ is to perform such act”. Living person includes a company or association or body of individuals, whether incorporated or not.
Following are different ways by which a property can be transferred:
- Sale of immovable property.
- Mortgage of immovable property.
- Lease of immovable property.
- Exchange of property.
- Gift of Immovable Property.
For example if a property is transferred through gift by a person to another person without his will or under undue influence, then it can cancelled by with the evidence that the gifted property is transferred under undue influence. Gift is a process where a person at voluntarily transfer his property to the person he wants to transfer. The gift cannot be transferred by any instance of undue influence. The whole idea behind undue influence is that the where donor was wrongfully influenced by another person to give them the gift.
As per Indian Contact Act Undue Influence is where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other party and uses that position to obtain an unfair advantage over the other. Undue influence can be proven through many different ways, such as examining the statements or conduct made by the recipient etc. Certain acts like fraud, threats, misrepresentation, or physical/moral coercion can damage the owner’s will power. Section 42 under the Transfer of property Act, transfer by person having authority to revoke former transfer, Where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power and under section 126 a gift may be suspended or revoked where donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked, but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be.
Before proving a gift transfer is done under undue influence, a court will examine all the circumstances. There are certain circumstances by which a transfer can take under undue influence:
- Whether other parties knew of the gift.
- Whether the party that benefited from the gift took action in securing the same.
- Whether the gift was consistent with the prior statements or plan of the donor.
- It also considers donor’s age, mental capacity, physical condition.
- The type of relationship between donor and done.
- Whether the donor has transferred the property voluntarily or not.
- Motive each party’s for giving/receiving the gift.
Thus, the court may need to examine all of the circumstances in order to find the transfer is done undue influence. Each case may be different as depending on the facts of the parties.In most cases gift transfers from undue influence are considered revocable. It means that the donor may reclaim their gift, and the recipient must have to return the property to them if possible. If the gift has been destroyed, altered, lost, or cannot be located, the receiver may have to compensate the donor through a monetary term. It will be calculated as per the fair market value at the time of the transfer. The receiver of the gift also has to pay damages for resulting from the transfer.