Concept of Gift under Hindu Law

  

Q. 20 . What are the requisites of a valid gift in Hindu law? State the nature and extent of the right of the father to dispose of his separate property by way of gift?

Definition of gift.-Gift is the transfer of ownership in an existing movable or immovable property without any consideration. The essence of a gift is a voluntary and gratuitous transfer of ownership in a property in favour of another person. The gift may either be a Gift inter vivos, or Gift Testamentary. A gift 'inter vivos' takes place between living persons. The testamentary gift is termed as "will" and takes place (operates) only after the death of the transferor (testator). Gifts by testament (i.e., a will) are outside the scope of this Act. The Transfer of Property Act lays down the law relating to gifts inter vivos only.

Sonia Bhatia v. State of UP., AIR 1981 SC 1274  Court observed that “A gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact, where there is any equivalent of benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift and assumes different colour. The motive or the purpose of making a gift should not be confused with the consideration which is the subject matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place”.

In Hindu Law, gift consists in the relinquishment (without consideration) of one's own right in the property and the creation of the right of another, and the creation of another man's right is completed by the other's acceptance of the gift but not otherwise.

Thus, as per this definition, the essentials of a valid gift may be described as under

1.      One gives up his right in his own property to another.

2.      That other person accepts the gift

3.       There is no consideration.

4.       There is a delivery of possession.

 

A gift under pure Hindu Law need not be in writing. Under that law, the gift is not valid unless It is accompanied by delivery of possession of the subject of the gift from the donor to the donee. Mere registration of the deed of gift is not equivalent to the delivery of possession.

 

It is not therefore sufficient to pass the title of the property from the donor to the donee. Mere execution of a registered deed is also no proof of acceptance by the donee. Acceptance must be proved as an independent fact.

 

Section 122 of the Transfer of Property Act, 1882, defines gifts as follows:

 

"Gift is the transfer of certain existing moveable or immoveable 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.

 

Acceptance, when to be made-Such acceptance, must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void"

Essentials of gift.-The essentials of a valid gift are as under :

(i) there must be transfer of ownership;

(ii) the ownership must relate to a property in existence;

(iii) the transfer must be without consideration;

(iv) it must have been made voluntarily;

(v) the donor must be a competent person;

(vi) the transferee must accept the gift.

 

In Kishore Raj Thakur Bije v. Basanti Kumar Das, AIR 1994 Ori 11, it was observed that the rules evolved for the protection of pardanashin ladies should not be confused with other doctrines such as fraud, duress and actual undue influence which apply to all persons whether they be pardanashin ladies or not. If the plaintiff is an illiterate or pardanashin lady, yet the defendant must establish the fact that the plaintiff executed the document after the document was read over and explained to her and she understood the contents thereof. Even though no fraud was played upon the pardanashin lady, the gift deed was void as the contents had neither been read over to her nor explained to her which would show that she executed the deed after understanding the contents thereof.

 

Transfer how effected:- 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. [Section 23 of Transfer of Property Act, 1882]

In R.N. Dawar v. M.Ganga Ram Saran Dhama, AIR Del 19, it was held that under section 123 of the Transfer of Property Act, a gift of immovable property cannot pass any title to the donee if it is not registered. Any oral gift of immovable property cannot be made in view of the provision of section 123 of the Act, mere delivery of posession without written instrument cannot confer any title

Subject matter of gift - The following property may validly be disposed of by gift

 

1. Separate or self-acquired property of a Hindu whether governed by Mitakshara or Dayabhaga law.

 

2. Stridhana ie., woman's absolute property.

3. Impartible property, unless prohibited by custom or the term of the tenure.

 

4. Interest of a coparcener under Dayabhaga Law.

 

5.      The whole of the ancestral property, by father under Dayabhaga Law.

6. A small portion of the property inherited by a Hindu widow, may be gifted to her daughter or her son-in-law at the time of marriage.

7. Movable property inherited by a widow governed by Mayukha Law.

Gift-Right of Coparcener-Determination of It is well settled that in the Mitakshra school, no coparcener can dispose of by gift even his undivided interest of the joint family property except with the consent of the other coparceners. The authority to make a gift depends upon the donor's power of disposal over the subject matter of the gift. If it was his self-acquired property, he was entitled to dispose it of by gift or devise at his discretion. But if it was his joint property, then his power of disposal was necessarily limited by the rights of his coparceners,

Article 258 of Mulla's Hindu Law provided that according to the Mitakshara Law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. He may, however, make a gift of his interest with the consent of the other coparceners.

 

In Thamma Venkatasubramma v. Thamma Rattamma and others AIR 1987 SC 1775, while considering the question of making a gift of his undivided interest in coparcenary property by a coparcener, it was held that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid, otherwise, such a gift by a coparcener was void.

When gift may be suspended or revoked. :-The 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. A gift may also be revoked in any of the cases (save for want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked

 

A Hindu, even if he is joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He can dispose of such property in any manner he likes. Thus a Hindu, whether governed by Mitakshara or Dayabhaga school, may dispose of by gift his separate or self-acquired property, subject in certain cases to the claims for maintenance of those whom he is legally bound to maintain. There is no other restriction on the powers of a Hindu to make gifts of his separate property.

 

VALIDITY OF GIFT MADE IN FAVOUR OF AN UNBORN PERSON

 

Under Hindu Law, a gift could not be made in favour of an unborn person who was not in existence at the date of the gift, Tagore v. Tagore, 9 BLR 277

Exceptions-But the above rule of pure Hindu Law has been altered by the following three enactments

 

1. The Hindu Transfer and Bequests Act, 1914-It applies only to transfers executed on or after the 14th February, 1914, or if executed earlier, intended to come into operation on or after that date. by Hindu domiciled in Madras State except the city of Madras.

 

2. The Hindu Disposition of Properties Act, 1916-It applies only to transfers executed on or after the 20th September, 1916, by a Hindu in any part of India except Madras State

3. The Hindu Transfer and Bequests (City of Madras) Act, 1921 - This Act enacted that no gift is invalid by reason only that any person for whom it may have been made was not born at the date of the gift.

 

Under the provisions of Chapter 11, Transfer of Property Act, the following conditions must be satisfied, otherwise, the gift will not be valid:

 

(i) if a gift to an unborn person is preceded by a prior disposition, the gift must be of the whole of the remaining interest of the transferor in the property;

(ii) the gift should not offend the rule against perpetuity;

(iii) if the gift is made to a class of persons with regard to some of them, (1) it is void as offending ar (i), the gift fails in regard to those persons only and not in regard to the whole class; and

(iv) if a gift to a new born person is void under (i) or (ii), any gift intended to take effect after such gift is also void.