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hindu-law:part-2:fathers-power-to-gift

Father’s Power To Gift Ancestral Property

Although sons acquire by birth rights equal to those of a father in ancestral property, both movable and immovable, the father has the power of making within reasonable limits, gifts of ancestral movable property without the consent of his sons for the purpose of performing indispensable acts of duty, and for purposes prescribed by texts of law, as gifts through affection, support of the family relief from distress and so forth.1)

Gift out of Affection

The element of love and affection relate to emotions of a man. One may be impelled by his conscience or may be moved by emotions to part away with his wealth or property and to give the same to a particular person for whom he has developed love and affection. Such a desire can be developed at any time and on any ground. The factors which weigh for executing such desire are best known to the donor. It is not easy to make probe into such human psychology or human emotions which one may carry at the time of making such sacrifices.2)

A ‘gift of affection’ may be made to a wife, to a daughter, and even to a son. But the gift must be of property within reasonable limits. A gift of the whole, or almost the whole, of the ancestral movable property to one son to the exclusion of the other sons, cannot be upheld as a ‘gift through affection’ prescribed by the texts of law.3)

However, the gift made to wife by her husband of ancestral immovable property, out of affection, cannot be upheld, even where the husband is carrying out his father's wishes, for no such gift is permitted under Hindu law insofar as immovable ancestral property is concerned. Even the father-in-law, if he had desired to make a gift at the time of the marriage of his daughter-in-law, would not be competent to do so insofar as immovable ancestral property is concerned.

The Supreme Court in Ammathayee alias Perumalakkal vs Kumaresan alias Balakrishnan4) has pointed out that so far as movable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift, for example, of the whole or almost the whole of the ancestral movable property cannot be upheld as a gift through affection; but, so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral property. Gift for the Maintenance of Daughter The Hindu Law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. However, it became crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. Nevertheless, the obligation can be discharged at any time either during the lifetime of the father or thereafter.

It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case. It can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances.5)

Gift to an Unborn Person

According to the (Sastric) Hindu Law, there must be a present beneficiary in order to make a gift valid. The law of gifts and of wills is the same. In order that there may be a valid gift, the donor must immediately divest himself of the property in favour of some existing beneficiary. There cannot be a gift to a person to come into operation at a future date, unless there is a gift to a beneficiary in the interim.6)

However, taking into account the provisions of the Transfer of Property Act, the court, in the case of T Subramania Nadar vs T Varadharajan7) has laid down that what is given to unborn person need not necessarily vest in him at his birth. A gift can be made to an unborn person subject to the following conditions

  1. that the gift shall be of the whole of the remaining interest of the testator in the thing bequeathed and not of a limited interest; and
  2. that the vesting is not postponed beyond the life in being and 18 years, being the rule against perpetuities as laid down in section 114.

In the decision of the Hon'ble Supreme Court in FM Devaru Ganapati Bhat vs Prabhakar Ganapathi Bhat8) Hon’ble Supreme Court has held that there is no ban on the transfer of interest in favour of an unborn person. There can be an interest created for the benefit of an unborn person who acquires interest upon his birth.

Gift to a Minor

A gift may be accepted by or on behalf of a person who is not competent to contract. A minor may, therefore, be a donee. However, if the gift is onerous, the obligation cannot be enforced against him while he is a minor. When he attains majority he must either accept the burden or return the gift. There is no doubt that there can be a gift in favour of a minor. The only thing that is required to be done is that the father should accept such gift as his guardian and nothing more. It is so because as per the definition of ‘gift’, it is transfer without consideration and, if that is so, the gift is not a matter of contract between two persons for consideration. The gift is a voluntary gratuitous transfer. Such a gift could be also in favour of a deity or in favour an unborn person. In such cases, the only thing that is required for the completion of gift is that some person has to accept the gift either on behalf of the minor or deity. Since it is not a matter of contract between donor and donee for consideration, the donee can as well be a minor. Therefore, the principle laid down under section 11 of the Indian Contracts Act that a contract with a minor is void, would not apply to the gifts. In this view of the matter, there can be a gift in favour of the minor without even being represented by guardian. In case of onerous gift, he may return it after attaining majority. There should be a guardian or some person who has to accept the gift on behalf of such minor.9)

In the case of Sundar Bai vs Anandi Lal10), the donee was a child and in the care of the donor himself. The High Court held that in such circumstance, express acceptance could not be insisted upon.

In the case of Ponnuchami Servai vs Balasubramanian11) the father himself was the donor and executed a gift deed in favour of his minor son. The parties continued to stay together in the said property even after the gift. In these circumstances, it was held that the gift in favour of the minor would be deemed to have been accepted as the father himself was the guardian and had himself executed the gift-deed.

Gift to Trust

Religious and Charitable Institution

A Hindu who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it. A trust is not required for that purpose. All that is necessary is that the religious or charitable purposes should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to those purposes. Even in the case of a dedication to an idol, which cannot itself physically hold lands, it is not necessary, though it is usual, to vest the lands in trustees. Nor it is necessary that there should be any express words of gift to the idol. No religious ceremony such as sankalp, samarpan, pranapratishta or kumbhabhishekam, etc., is necessary. A clear and unequivocal manifestation of intention to create a trust and vesting of the same in the donor or another as a trustee is enough to constitute dedication. Such a dedication is valid, but the subject of endowment has to be certain.12)

There must be a clear and unequivocal manifestation of intention to create a trust and there must be a formal divesting of the ownership of the property on the part of the donor and vesting the same in another. There must also be a clear change in the tenure of the property with the intention on the part of the donor to devote it to religious or public purposes. Then only, the dedication must be deemed to be complete. The evidence of divestiture must be contemporaneous and the subsequent acts and conducts of the donor are irrelevant and cannot re-invest him.Jai Dayal vs Dewan Ram13)

If there is clear and unequivocal manifestation of the intention to create a trust and there is formal divesting of ownership in the property on the part of the donor with the intention of devoting it to the religious or charitable purpose, dedication must be deemed to be complete.14)

A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for 'pious purposes'. What is generally understood by 'pious purposes' is gift for charitable and/or religious purposes. It also includes cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfillment of an ante-nuptial promise made on the occasion of the settlement of the terms of her marriage and the same can also be done by the mother in case the father is dead.Ammathayee alias Perumalakkal vs Kumaresan alias Balakrishnan15)

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1) , 3)
Vide: S Raghbir Singh Sandhawalia vs Commissioner of Income Tax, AIR 1958 P H 250
2)
Ms Mayawati vs Dy Commissioner of Income Tax, (2008) 113 TTJ (Delhi) 178
4) , 15)
AIR 1967 SC 569
5)
Guramma Bhratar Chanbasappa vs Malappa, 1964 SCR (4) 497
6)
Gadadhur Mullick vs The Official Trustee of Bengal, (1940) 42 BOMLR 621
7)
2003 2 MLJ 224
8)
2004 MLJ 180 (SC)
9)
Kavali Hanumanna vs Huzurappa, 1999 (6) ALD 815; 1999 (6) ALT 626
10)
AIR 1983 All 23
11)
AIR 1982 Mad 281
12)
Mulla's Hindu Law
13)
AIR 1938 Lahore 686
14)
BK Mukherjea’s Hindu Law of Religious and Charitable Trust


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Created on 2021/02/09 15:23 by LawPage • Last modified on 2021/04/09 22:26 (external edit)