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Mulla Hindu Law/Part 1/XVIII GIFTS/§ 355. 'GIFT' DEFINED

§ 355.

'GIFT' DEFINED.--

Gift consists in the relinquishment (without consideration) of one's own right (in property) and the creation of
the right of another; and the creation of another man's right is completed on that other's acceptance of the gift,
but not otherwise.1

1. Mitakshara, Ch 3, ss 5 and 6. See § 358, and notes under 'Acceptance of Gift'.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 356. WHAT PROPERTY MAY BE DISPOSED OF BY GIFT

§ 356.

WHAT PROPERTY MAY BE DISPOSED OF BY GIFT.--

(1) 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 (§ 222). Reference may be made to ss 18-22 of the Hindu
Adoptions and Maintenance Act 1956.
(2) A coparcener under Dayabhaga law may dispose of his coparcenary interest by gift, subject to
the claims of those who are entitled to be maintained by him (§ 282).

A coparcener under Mitakshara law, however, has no such power (§ 258), unless he is the sole
surviving coparcener (§ 257).
(3) A father under Dayabhaga law, may by gift, dispose of the whole of his property, whether
ancestral or self-acquired, subject to the claims of those who are entitled to be maintained by
him.2

The reason is that according to the Bengal School, 'where property is held by the father (as the
head of the family), his issue have no legal claim upon him or the property, except for their
maintenance. He can dispose it of as he pleases, and they cannot require a partition. The sons
have no ownership while the father is alive and free from defect. Upon his death, the property in
the sons arises, and with it the right to a partition' (§§ 273, 275).3 A father under Mitakshara law
has no such power over joint family property. He cannot dispose of it, not even his own interest
therein, by gift. In certain cases, however, he has a special power, by virtue of his position as
father, to dispose of, by gift, a small portion of joint family property (§§ 225 and 226).
(4) A female may dispose of her stridhana by gift or will, subject in certain cases to the consent of
her husband (§ 143). The rights of a female have been considerably enlarged by s 14 of the Hindu
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Succession Act 1956. Reference may be made to the notes under that section.
(5) A widow may, in certain cases, by gift, dispose of a small portion of the property inherited by her
from her husband [§ 181B(2)(v)], but she cannot do so by will. Her rights have been considerably
enlarged by s 14 of the Hindu Succession Act 1956. Reference may be made to the notes under
that section.
(6) A widow governed by Mayukha law may alienate by gift movable property inherited by her from
her husband, though she cannot dispose of it by will (§ 179). Her rights have been considerably
enlarged by s 14 of the Hindu Succession Act 1956. Reference may be made to the notes under
that section.
(7) The owner of an impartible estate may dispose of the estate by gift or will, unless there be a
special custom prohibiting alienation, or the tenure is of such a nature that the estate cannot be
alienated.4

Marumakkatayyam law.--As to the effect of a gift by a husband to his wife and her children by him, her children by her
former husband being alive at the date of the gift, see the undermentioned case.5

2. Nagalutchmee v. Gopoo, (1856) 6 MIA 309, p 344 (case of a will).

3. Sartaj v. Deoraj, (1888) 10 All 272, p 288, 15 IA 51.

4. See Ch XXVII. Surtaj v. Deoraj (1888) 10 All 272, 15 IA 51; Venkata Surya v. Court of Wards, (1899) 22 Mad 383 : 26 IA 83; Rao
Bhimsingh v. Fakirchand, (1947) Nag 649.

5. Moithiyan v. Ayssa, (1928) 51 Mad 574 : 110 IC 480 : AIR 1928 Mad 870.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 357. DELIVERY OF POSSESSION

§ 357.

DELIVERY OF POSSESSION.--

(1) A gift under pure Hindu law need not be in writing. However, a gift under that law is not valid unless it is
accompanied by delivery of possession of the subject of the gift from the donor to the donee.6 Mere registration
of deed of gift is not equivalent to delivery of possession; it is not therefore sufficient to pass the title of the
property from the donor to the donee.7 However, where from the nature of the case, physical possession cannot
be delivered, it is enough to validate a gift, if the donor has done all that he could do to complete the gift, so as
to entitle the donee to obtain possession.8

Illustrations

(a) A executes a deed of gift of certain immovable property to B. At the date of the gift, the property is in the
possession of C, who claims to hold it adversely to A. B sues C to recover possession of the property
from him, joining A in the suit as a defendant. A by his written statement, admits B's claim. C contends
that the gift is void, inasmuch as A was out of possession at the date of the gift, and possession was not
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given to B. The gift is valid, though possession was not delivered by the donor to the donee. 'The donor
has done all that she can to complete the gift, and is a party to the suit, and admits the gift to be
completed'.9
(b) A gift of property in the occupation of tenants may be completed by the tenants attorning to the donee at
the donor's request.10
(c) If the donee is already in possession, the gift may be completed by declaration of gift on the part of the
donor, and by acceptance on the part of the donee.11
(d) A gift among the Hindus of Berar, before the application of the Transfer of Property Act to that state, is
invalid, unless accompanied by delivery of possession.12
(e) It has been held by the High Court of Allahabad that mere delivery of a registered deed of gift is
sufficient to complete a gift.13 This view cannot be supported, unless the case was one governed by the
Transfer of Property Act (see sub-ss (2).
(f) For the purpose of making a gift of an incorporeal right, the transfer may be effected in the same manner
as the transfer of a chose in action.14

(2) As regards Hindu gifts to which the Transfer of Property Act 1882 applies, the rule of pure Hindu law, that delivery
of possession is essential to the validity of a gift, is abrogated by s 123 of that Act.15 Under that Act, delivery of
possession is no longer necessary to complete a gift, nor is mere delivery sufficient to constitute a gift except in the case
of movable property. A gift under that Act can only be effected in the manner provided by s 123. That section is as
follows:

(i) 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.
(ii) For the purpose of making a gift of movable property, the transfer may be effected by a registered
instrument signed as aforesaid or by delivery.

Gifts by Hindus to which the Transfer of Property Act 1882 applies.--

Section 123, Transfer of Property Act 1882, has been applied to gifts by Hindus by s 129 of that Act. The Act came into
force on the first day of July 1882. The provision of s 123, Transfer of Property Act apply to all gifts made by Hindus in
the territories to which that Act applies since the date on which the Act came into force in those territories.

Writing

Writing is not necessary under Hindu law for the validity of any transaction.16 Therefore, in cases of gifts by Hindus to
which the Transfer of Property Act does not apply, a gift may be made orally or in writing.

The effect of s 123, Transfer of Property Act is to dispense with delivery of possession.17 However, the Act does not
dispense with the necessity of acceptance as is clear from s 122. The mere execution of a registered deed by the donor is
no proof of acceptance by the donee. Acceptance must be proved as an independent fact.

Gifts and bequests to Unborn Persons

See §§ 358 and 359.

6. Harijivan v. Naran, (1867) 4 Bom HCAC 31; Abaji v. Mukta, (1894) 18 Bom 688; Venkatachella v. Thathammal, (1869) 4 Mad HC 460,
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Gordhandas v. Bai Ramcoover, (1902) 26 Bom 449; Nozi v. Mohanlal, AIR 1957 Raj 128.

7. Vasudev v. Narayan, (1883) 7 Bom 131; Dagai v. Mothura, (1883) 9 Cal 854; Lakshimoni v. Nityananda, (1893) 20 Cal 464.

8. Kalidas v. Kanhaya Lal, (1884) 11 Cal 121 : 11 IA 218 (where the gift was effected by an Ikrarnama); Joitaram v. Ramkrishan, (1903) 27
Bom 31; Rajaram v. Ganesh, (1889) 23 Bom 131; Bhakar v. Sarasvatibai, (1893) 17 Bom 486.

9. Kalidas v. Kanhaya Lal, (1884) 11 Cal 121 : 11 IA 218; Man Bhari v. Naunidh, (1882) 4 All 40, p 45.

10. Bank of Hindustan v. Premchand, (1868) 5 Bom HCOC 83.

11. Bai Kushal v. Lakhama, (1883) 7 Bom 452.

12. Chandrabhaga v. Anandarao, (1939) Nag 293.

13. Balmakund v. Bhagwan Das, (1894) 16 All 185.

14. Chalamanna v. Subbamma, (1884) 7 Mad 23 (gift of a nibandha or corrody); Khursedji v. Pestonji, (1888) 12 Bom 573 (gift of
government promissory notes).

15. Kalyanasundaram v. Karuppa, (1927) 54 IA 89 : 50 Mad 193, 100 IC 105 : AIR 1927 PC 42; Atmaram v. Vaman, (1925) 49 Bom 388
(FB), 87 IC 490 : AIR 1925 Bom 210; Dharmodas v. Nistarini, (1887) 14 Cal 446; Balbhadra v. Bhowani, (1907) 34 Cal 853; Bai Rambai v.
Bai Mani, (1899) 23 Bom 234; Ramamirtha v. Gopala, (1896) 19 Mad 433; Alabi v. Mussa, (1901) 24 Mad 513, p 522; Phulchand v.
Lakkhu, (1903) 25 All 358; Lallu Singh v. Gur Narain, (1923) 45 All 115 : 68 IC 798 : AIR 1922 All 467 (FB); Ranganadha v. Baghirathi,
(1906) 29 Mad 412, p 415. However, see Moosabhai Yacoobhi, (1905) 29 Bom 267; Sadik Hussain Khan v. Hashim Ali Khan, (1916) 43 IA
212, pp 222, 223, 38 All 627, p 647 : 36 IC 104 : AIR 1916 PC 27.

16. Balram v. Appa, (1872) 9 Bom HC 121; Hwrpurshad v. Sheo Dyal, (1876) 26 WR 55 : 3 IA 259.

17. Dharmodas v. Nistarini, (1887) 14 Cal 446, p 448.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 358. GIFT TO UNBORN PERSON: RULE APART FROM STATUTE

§ 358.

GIFT TO UNBORN PERSON: RULE APART FROM STATUTE

Under pure Hindu law, a gift cannot be made in favour of a person who was not in existence at the date of the
gift.18 This rule still applies to cases to which the provisions of the three Acts mentioned in the next section (§
359) do not apply.19

For exception to this rule, see notes to § 371. As to bequests, see § 372. As to trusts, see § 365. As to gift to an
idol, see § 404.

18. Tagore v. Tagore, (1872) 9 Beng LR 377, pp 397, 400; Bai Mamubai v. Dossa, (1891) 15 Bom 443; Sri Raja Venkata v. Sri Rajah
Suraneni, (1908) 31 Mad 310.

19. Raman Nadar v. Rasalamma, AIR 1970 SC 1759.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 359. GIFT TO UNBORN PERSON: RULES AS ALTERED BY STATUTE
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§ 359.

GIFT TO UNBORN PERSON: RULES AS ALTERED BY STATUTE.--

(1) The rule of Hindu law stated in § 358 that a gift cannot be made in favour of a unborn person has been
altered by three Acts, namely, the Hindu Transfers and Bequests Act, 1914, the Hindu Disposition of Property
Act, 1916, and the Hindu Transfers and Bequests (City of Madras) Act, 1921. The rule as altered by these Acts
may be stated as follows:

Subject to the limitations and dispositions contained in Chapter II of the Transfer of Property Act, 1882, no gift
is invalid by reason only that any person for whose benefit it may have been made was not born at the date of
the gift.

This rule, however, is not of universal application, but is confined to the following transfers, by way of gift:

(i) to transfers executed on or after 14 February 1914, by Hindus domiciled in the State of Madras
except the City of Madras, and in the case of transfers executed before that date, to such of the
dispositions thereby made as are intended to come into operation at a time which is subsequent to
that Act, ie, the Hindu Transfers and Bequests Act, 1914. The Hindu Transfers and Bequests Act,
1914, which applied to the State of Madras except the city of Madras, now stands repealed with
effect from 1 February 1960 and the Hindu Disposition of Property Act, 1916 has now been made
applicable to the State of Madras also;20
(ii) to transfers executed on or after the 20 September 1916, by Hindus in any part of India except the
State of Madras (Hindu Disposition of Property Act, 1916). The Hindu Disposition of Property
Act, 1916, which originally applied to the rest of India except the State of Madras, has now been
made applicable to the State of Madras also;
(iii) to transfers executed on or after the 27 March 1921, by Hindus domiciled within the limits of the
ordinary original civil jurisdiction of the High Court of Madras, and, in the case of transfers
executed before that date, to such of the dispositions thereby made as are intended to come into
operation at a time which is subsequent to the 14 February 1914 (Hindu Transfers and Bequests
(City of Madras) Act, 1921). The Hindu Transfers and Bequests (City of Madras) Act, 1921,
which applied to the City of Madras, stands repealed with effect from 1 February 1960 and the
Hindu Disposition of Property Act, 1916 has now been made applicable to the City of Madras
also.21

(2) The limitations and provisions contained in Chapter II of the Transfer of Property Act, 1882 are discussed in
§§ 383-87. For the present, they may be summarised as follows:

(a) if the gift to an unborn person is preceded by a prior disposition, the gift shall be of the whole
residue;
(b) the gift shall not offend the rule against perpetuities;
(c) if a gift is made to a class of persons with regard to some of whom it is void under (a) or (b), the
gift fails in regard to those persons only and not in regard to the whole class;
(d) if a gift to an unborn person is void under (a) or (b), any gift intended to take effect after such gift
is also void.

History of the legislation on the subject.--

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It was held by the Privy Council in the Tagore case in 1872, that a Hindu cannot dispose of his property by gift in
favour of a person who was not in existence at the date of the gift (§ 35), nor could he dispose of his property by will in
favour of a person who was not in existence at the date of the death of the testator (§ 372). The first enactment, which
validated gifts and bequests in favour of unborn person, was the Hindu Transfers and Bequests Act, 1914. This was an
Act, of the Madras legislature. It applied in terms to the whole of the State of Madras and was intended so to apply. It
was followed by Hindu Disposition of Property Act, 1916, which was an Act, of the Imperial legislature. It applied to
the whole of British India except the province of Madras, for which legislation had already been made by the local Act,
of 1914. After the Act, of 1916 was passed, the High Court of Madras held as to the Madras Act, of 1914, that the local
legislature had no power to take away the right of a Hindu domiciled within the local limits of the ordinary original civil
jurisdiction of the High Court of Madras, to be governed by the Hindu law as it stood when the High Courts Act, 1861,
was passed. The fact, however, was that Hindu law, as it then stood did allow gifts and bequests in favour of unborn
persons, and the Tagore case had misinterpreted that law.22 This led to the enactment by the Imperial legislature of the
Hindu Transfers and Bequests (City of Madras) Act, 1921. This Act, extends in effect the local Act, of 1914 to Hindu
domiciled in the City of Madras. It also validates gifts and bequests made by Hindus domiciled in the City of Madras
subsequent to 14 February 1914, being the date on which the local Act, of 1914 came into force. The result is that as
between them, the Acts of 1914 and 1921 apply to the whole State of Madras, and the Act, of 1916 apply to the rest of
India.

It may be noted, however, that, as stated earlier, with effect from 1 February 1960, the Hindu Transfers and Bequests
Act, 1914, and the Hindu Transfers and Bequests (City of Madras) Act, 1921 stands repealed. The Hindu Disposition of
Property Act, 1916, has now been made applicable to the whole of India including the State and City of Madras,
excepting the State of Jammu and Kashmir [see Miscellaneous Personal Laws (Extension) Act, XLVIII of 1959].

Gift and bequests, however, in favour of unborn persons, could only be made subject to certain limitations and
provisions. These limitations and provisions were not the same under the three Acts. To attain uniformity, the three Acts
were amended by the Transfer of Property (Amendment) Supplementary Act, being Act, 21 of 1929, which came into
force on 1 April 1930. These limitations and provisions are more or less the same, both in the case of gifts and of will,
and they are dealt with together in §§ 383 and 384. Except as to these, we have dealt separately with gifts and bequests
in favour of unborn persons, not because there is any material difference between them, but because a separate
treatment must conduce to a clear understanding of the subject. As to bequests to unborn persons, see § 372.

20. Miscellaneous Personal Laws (Extension) Act XLVII of 1959.

21. Miscellaneous Personal Laws (Extension) Act XLVII of 1959.

22. Raman Naddar v. Rasalamma, AIR 1970 SC 1759.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 360. RESERVATION OF LIFE INTEREST

§ 360.

RESERVATION OF LIFE INTEREST.--

A gift of property is not invalid because the donor reserves the usufruct of the property to himself for life.
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Illustration

A executes a registered deed of gift of seven villages to her daughter, and delivers immediate possession of four villages
to her. As to the remaining three villages, the condition is that she will retain possession and enjoy the profits thereof
during her lifetime, but will not have power to make any transfer in respect thereof. The gift is valid not only as regards
the four villages, but as to the other three also. There being an intention to effect a transfer in praesenti of the
proprietary interest in all the seven villages and to vest the same in the donee, the reservation of the right to enjoy the
usufruct on the three villages during her own lifetime does not make the gift invalid as to the three villages.23

23. Lallu Singh v. Gur Narain, (1923) 45 All 115 : 68 IC 798 : AIR 1922 All 467 (FB).

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 361. CONDITIONS RESTRAINING ALIENATION OR PARTITION

§ 361.

CONDITIONS RESTRAINING ALIENATION OR PARTITION.--

Where property is given subject to a condition absolutely restraining the donee from alienating it,24 or it is given
to two or more persons subject to a condition restraining them from partitioning it,25 the condition is void, but
the gift itself remains good (§ 392).

24. Anantha v. Nagamuthu, (1882) 4 Mad 200; Ali Hasan v. Dhirja, (1882) 4 All 518; Bhairo v. Parmeshri, (1885) 7 All 516 (case of a deed
of compromise); Muthukumara v. Anthony, (1915) 38 Mad 867 : 24 IC 120; Rukminibai v. Laxmibai, (1920) 44 Bom 304 : 56 IC 361 : AIR
1920 Bom 73 (agrahar gift). See Transfer of Property Act, 1882, s 10. Hari Singh v. Bishan Lal, AIR 1992 P&H 11 (gift to temple).

25. Narayanan v. Kannan, (1884) 7 Mad 315 (Transfer of Property Act, 1882, s 11).

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 362. REVOCATION OF GIFT

§ 362.

REVOCATION OF GIFT.--

A gift once completed is binding upon the donor, and it cannot be revoked by him,26 unless it was obtained by
fraud or undue influence.27

Where gift is made by a Hindu widow, the burden lies upon the donee to show that she made the gift with a full
understanding of what she was doing and was aware of her rights.28
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26. Ganga Baksh v. Jagat Bahadur, (1896) 23 Cal 15 : 22 IA 153; Rajaram v. Ganesh, (1899) 23 Bom 131; Ammaponammal v.
Shanmugam, AIR 1971 Mad 370; Punnuswami Servai v. Balasubramaniam, AIR 1982 Mad 281 (of undivided interest in coparcenary
property by father in favour of minor son only).

27. Manigavri v. Narondas, (1891) 15 Bom 549.

28. Deo Kuar v. Man Kaur, (1894) 17 All 1 : 21 IA 148 (gift set aside--suit brought eight years after date of gift--document not explained to
donor).

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 363. GIFT IN FRAUD OF CREDITORS

§ 363.

GIFT IN FRAUD OF CREDITORS.--

A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors.29

29. Nasir v. Mata, (1880) 2 All 891; Rai Bishen Chand v. Asmaida Koer, (1884) 6 All 560 : 11 IA 164.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 364. DONATIO MORTIS CAUSA

§ 364.

DONATIO MORTIS CAUSA.--

A donatio mortis causa, ie, a gift made in contemplation of death, is recognised by the Hindu law.30

30. Visalatchmi v. Subbu, (1871) 6 Mad HC 270; Bhaskar v. Sarasvatibai, (1893) 17 Bom 486, p 495.

Mulla Hindu Law/Part 1/XVIII GIFTS/§ 365. TRUSTS

§ 365.

TRUSTS.--
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(1) Trusts are no more alien to the Hindu than to the English system of law.31 Before the enactment
of the Indian Trusts Act, 1882, a trust could only be created by delivery of possession, or its
equivalent,32 to trustees as in the case of a gift. However, a Hindu trust governed by the Act, can
only be created in the manner provided by s 5 of that Act. That section is as follows:
(i) No trust in relation to immovable property is valid unless declared by a non-testamentary
instrument in writing signed by the author of the trust or the trustee and registered, or by
the will of the author of the trust of the trustee.
(ii) No trust in relation to movable property is valid unless declared as aforesaid or unless the
ownership of the property is transferred to the trustee.33

(2) A trust cannot be created except in favour of a person to whom a gift or bequest can be validly
made. Nor can a trust be made a means of effecting a course of devolution opposed to the Hindu
law of property and succession. In other words, trusts are to be regarded as gifts alike as to the
property, which can be transferred as to the persons to whom it can be transferred.34

There is some authority for the proposition that under the Hindu law, in cases not governed by the Indian Trusts
Act, 1882, a mere declaration of trust, not amounting to a legal transfer, can be enforced in favour of the object
of the trust.35

31. Tagore v. Tagore, (1872) 9 Beng LR 377, pp 401-402; Sri Sridhar Jiu v. Manindra Kumar Mitra. (1940) 2 Cal 285, 195 IC 475 : AIR
1941 Cal 272.

32. Gordhandas v. Bai Ramcoover, (1902) 26 Bom 449, pp 470-71.

33. Ranganadha v. Beghirathi, (1906) 29 Mad 412, p 415.

34. In Re Kahandas Narrandas, (1881) 5 Bom 154, pp 173-74; Tagore v. Tagore, (1869) Beng LR 377, pp 401-402 : IA Sup Vol 47, pp
71-72; Rajender v. Sham Chund, (1881) 6 Cal 106.

35. Chatti v. Pandrangi, (1884) 7 Mad 23; Hirbai v. Jan Mahomed, (1883) 7 Bom 229; Bhaskar v. Sarasvatibai, (1893) 17 Bom 486, pp
498-501; Gardhandas v. Bai Ramcoover, (1902) 26 Bom 449, p 472.