Gift is regarded as the renunciation of the property right by the owner in the favor of donee. A man may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos (gift made during one's lifetime); the second, a testamentary disposition.
The gift under Hindu Law is defined as “the creation of another person’s proprietary right after the extinction of one’s own proprietary right in the subject matter of gift.” Gift under Shastric Hindu Law need not be writing, but such a gift will not be valid, unless it is accompanied by delivery of possession of the subject of the gift by the donor to the donee.
According to the Mitakshara, “A gift consists in the relinquishment, without consideration, of one’s own right of 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.”
Section 122 of the Transfer of Property Act, 1882, defines ‘gift’ as under—
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.
The only requirements for gift are that there should be transfer, by one person to another, of any existing movable or immovable property. Further, the transfer should be voluntary, and should be made without consideration of any money. The same should be out of natural love and affection and the donee must also accept the said gift.Ms Mayawati vs Dy Commissioner of Income Tax1)
Gifts do not contemplate payment of any consideration or compensation. Concept of payment of consideration in whatever form is unknown in the case of a gift. Gift should be voluntarily made. It should not be subjected to any undue influence.2)
Concept of payment of consideration in whatever form is unknown in the case of a gift. It should be a voluntary one. It should not be subjected to any undue influence.Asokan vs Lakshmikutty, 3)
The expression ‘donor’ means any person who makes a gift. It is not necessary that he should be the owner of the property, but he must be competent to transfer the subject of gift. A person, who is competent to transfer the property in whole or part and absolutely or with attachment of conditions, can be a donor. As per Hindu Law, the karta of the Hindu family has a right to dispose of the property by way of gift under certain circumstances. If circumstances or conditions are satisfied, the karta—donor is competent to transfer.
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 other coparceners. Such a gift will be legal and valid. A gift made by the coparcener to his brother should be construed as renunciation of his undivided interest in the coparcenary in favour of his brother and his sons, who were the remaining coparceners. A gift was, therefore, valid and consent of other coparceners was held immaterial.Thamma Venkata Subbamma (Dead) vs Thamma Rattamma4)
A father can make a gift of a small portion of his immovable property to his daughter at or after marriage; such gift being customary and allowed under Hindu Law.A Basaviah Gowder vs Commissioner of Gift Tax5)
A Hindu widow in possession of the estate of her deceased husband can make an alienation for religious purposes which are not essential or obligatory, but are still pious observances, contributing to the bliss of the deceased husband’s soul.
Gifts by a widow of landed property to her daughter or son in-law on the occasion of the marriage or any ceremonies connected with the marriage are recognized in Hindu Law. Some decisions go to the length of holding that there is a moral or religious obligation of giving a portion of the joint family property for the benefit of the daughter and the son in-law, and a gift made long after the marriage may be supported upon the ground that the gift when made fulfils that moral or religious obligation.Kamala Devi vs Bachu Lal Gupta6)
The position of stridhana of a Hindu married woman's property during coverture is absolutely clear and unambiguous. She is the absolute owner of such property and can deal with it in any manner she likes. She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband.Pratibha Rani vs Suraj Kumar7)
Donee is the person who accepts the gift. A minor may be a donee; but 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. The donee must be an ascertainable person.
The property of the following nature may be validly gifted under Hindu Law
In the case of Baba vs Timma8) it has been held that a Hindu father, if unseparated, has no power, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable. In that case, the gift was made by the father to a stranger to the detriment of the sons' right in the property gifted.
In the case of Ponnusami vs Thatha9) the gift was made by a brother to the children of his daughter. It was held that under the Hindu Law, a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text.
In the case of Ramanna vs Venkata10) a Hindu made a gift of certain land which he had purchased with the income of ancestral property. A suit was brought to recover the land on behalf of his minor son, who was born seven months after the date of the gift. It was held that the gift was invalid as against the plaintiff, and that he was entitled to recover the land from the donee. Thus, a son, who was born to the family after the gift was made, was held entitled to recover the property from the donee. In other words, he would not be bound by such alienation.
According to the Mitakshara Law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.11)
A coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger or in favour of his relations.Thamma Venkata Subbamma (Dead) through Lrs vs Thamma Rattamma12)
In the case of Rottala Runganathan Cheuy vs Pulicat Ramasami Chetti13) it has been held that it is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof;' and such an alienation, if made, is void in toto.
An individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
It is true that there is no specific textual authority prohibiting an alienation by gift. The law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been, to some extent, relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. While the legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will, the interest of a male Hindu in a Mitakshara coparcenary property. The legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property, either to a stranger or to another coparcener.
Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law is that, a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest.Thamma Venkata Subbamma (Dead) through Lrs vs Thamma Rattamma14)
The gift is a disposition in presenti. It becomes effective on due execution and registration and generally delivery of the possession.Dr. Mandakini Naik vs GK Naik15)
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.16)
The above definition does not show that delivery of possession is necessary to making a gift complete. All that is necessary is the relinquishment by one person, and acceptance by another. The matter has been explained in Mayne on Hindu Law and Usage, as follows—
“Apart from the Transfer of Property Act, it has generally been held that under Hindu law, delivery of possession is essential to complete a gift even though it is by a registered instrument. It would be more correct to say that according to Hindu law, acceptance by the donee is essential to the validity of a gift and delivery or taking of possession is but one of the modes of acceptance.”
It may be conceded that the law in what was formerly British India, as it developed, made delivery of possession of the essence in the matter of a gift under Hindu Law. The reason for that was that a gift under Hindu Law could be oral and no writing was required. In such circumstances, the unequivocal intention of relinquishment by one person and acceptance by another would generally be evidenced by change of possession. It is in this sense that it may be said that under Hindu Law, delivery of possession was necessary for making a gift complete.Mst. Nozi vs Mohanlal17)
In Lallu Singh vs Gur Narain18) the Full bench of the Allahabad High Court while interpreting section 123 of the Transfer of Property Act has held that delivery of possession is not necessary. Section 123 does away with the necessity of delivery of possession even if it was required by the strict Hindu Law, in the case of a registered instrument of gift properly executed and attested. 19)
In Balmakund vs Bhagwan Das, 1894 Allahabad Series 185, the Division Bench has observed that the delivery of the deed of gift of immovable property to the donee is sufficient to pass the title to such property to the donee without actual physical possession such property being taken by the donee.
While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role.Asokan vs Lakshmikutty20)
It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donee.Alavi vs Aminakutty21)
In order to constitute a valid gift, acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction, which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance.22)
Acceptance by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving. It would, thus, be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property.Km. Sonia Bhatia vs State of UP23)
In the case of Sundar Bai vs Anandi Lal24) 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 Ponuchami Servai vs Balasubramanian25) 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.
In the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible. The acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it. 26)
While determining the question whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. Even a silence may sometime indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift. As already said, acceptance of gift 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.Asokan vs Lakshmikutty27)
The evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. There may be cases where slightest evidence of such acceptance would be sufficient. There may still be cases where the circumstances themselves eloquently speak to such acceptance. Normally, when a person gifts properties to another and it is not an onerous gift, one may expect the other to accept such a gift when once it comes to his knowledge, since normally, any person would be only too willing to promote his own interest. In particular cases, there may be peculiar circumstances which may show that the donee would not have accepted the gift. However, these are rather the exceptions than the rule. It is only normal to assume than the rule. It is only normal to assume that the donee would have accepted the gift deed. One would have to look into the circumstances of the case in order to see whether acceptance could be read. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift.Asokan vs Lakshmikutty28)
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.