According to the Mitakshara, “a gift consists in the relinquishment, without consideration, of one’s own right in property, and the creation of the right of another. The creation of another man’s right is completed on that other’s acceptance of the gift, but not otherwise.”
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According to Hindu law, an acceptance of a gift can be made in three ways mental acceptance, verbal acceptance and corporeal acceptance. In the case of land, there can be no corporeal acceptance without enjoyment of the produce of such land. Such a gift must be accompanied by some possession, however little it may be; if not, the gift will be incomplete.
Properties which can be disposed by Gift:
ADVERTISEMENTS:
The following species of property can be disposed of by gift under Hindu Law:
1. A Hindu is entitled to dispose of his separate or self-acquired property by gift. This is, in certain cases, subject to the claims for maintenance of those members of his family, whom he is legally bound to maintain. (See Sections 18-22 of the Hindu Adoptions and Maintenance Act, 1956.)
2. As regards a gift of coparcenary property, there is a difference of opinion prevailing amongst the two Schools of Hindu law. According to the Dayabhaga School, a coparcener can gift away his coparcenary interest, subject to the claims for maintenance of those who are entitled to be maintained by him. However, according to the Mitakshara School, a coparcener cannot do so, except when he is the sole surviving coparcener. The Mitakshara School, however, does recognise the right of a father to dispose of by gift a small portion of the joint family property. (This has already been discussed in detail in an earlier Chapter.)
3. Under the Dayabhaga law, a father is entitled to dispose of even the whole of his property (whether ancestral or selfacquired), subject to the claims of those who are entitled to be maintained by him.
ADVERTISEMENTS:
4. Before 1956, a female Hindu was entitled to dispose of only her stridhana property by gift. Today, she can dispose of all her property by gift, whether it be stridhana, or whether it is obtained by her by inheritance from her husband or otherwise in whatsoever manner. (See Section 14 of the Hindu Succession Act, 1956.)
5. Earlier, a widow could dispose of a part of her widow’s estate by gift to her daughter on the occasion of the daughter’s marriage or to her son-in-law on such an occasion. This, however, could not be done by a will. However, her rights have now been considerably enlarged by S. 14 of the Hindu Succession Act, 1956.
6. A widow governed by the Mayukha law is entitled to alienate by gift, movable property which she has inherited from her husband, although she cannot dispose it off by will. (Her rights have now been considerably enlarged by S. 14 of the Hindu Succession Act, 1956.)
7. The owner of an impartible estate can dispose it of by gift (or by will), unless there is a special custom prohibiting such alienation or the tenure is of such a nature that the estate cannot be alienated.
Gift when complete:
ADVERTISEMENTS:
The traditional Hindu Law rules as to gifts were radically modified in 1882, by the passing of the Transfer of Property Act in that year. Under S. 123 of that Act, a gift of immovable property can only be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Thus, delivery of possession is not an ingredient of a gift under that Act. As regards movable property, the Act provides that a gift may be effected by a registered instrument signed as aforesaid, or by delivery.
It may, however, be noted that there are certain areas in Punjab where the Transfer of Property Act does not apply. And therefore, in such places, a gift is still governed by traditional Hindu law, under which the gift may be in writing or may even be oral. However, such a gift is not valid, unless it is accompanied by delivery of possession from the donor to the donee.
However, it may so happen that the subject-matter of the gift is of such a nature that it is not possible to gift physical possession, in which case, in order to validate the gift, it is enough if the donor has done all that he could do to complete the gift, so as to entitle the donee to obtain possession thereof. (Kalidas v. Kanhaya Lal. 11 Cal. 121)
Thus, if a gift is made of a property which is in the adverse possession of a third person, such a gift can be completed by the execution of a gift deed by the donor in favour of the donee. Similarly, a gift of property in the occupation of tenants can be completed by the tenants atoning to the donee at the request of the donor. (This would mean that the tenants would undertake to regard the donee as their landlord in place of donor, and would agree to pay all future rent to donee instead of to the donor.) Likewise, if the property to be gifted is already in the possession of the donee, such a gift can be completed by the declaration of the gift on the part of the donor and by acceptance thereof by the donee.
In cases where the Transfer of Property Act applies, the Hindu law rules that delivery of possession is essential to the validity of the gift, has been abrogated by S. 123 of that Act. Under the Act, delivery of possession is not necessary to complete a gift.
Similarly, mere delivery is not sufficient to constitute a gift, except in the case of movable property. In the case of immovable property, a gift can only be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.
It may also be noted that although the Transfer of Property Act dispenses with the Hindu Law rule of delivery of possession, the Act does not dispense with the necessity of acceptance, as is clear from S. 122 of that Act.