Introduction
Gifts consists in the relinquishment (without consideration) of one’s own right (in property) and the creation of the right of another. A gift is completed only on the other’s acceptance of the gift. Hindu law envisages three of acceptance of gift:
- By mental acceptance
- By verbal acceptance
- By corporeal acceptance
What property may be gifted?
A Hindu may dispose of the following properties by a gift:
- separate or self-acquired property whether governed by Mitakshara or Dayabhaga
- all property whether separate or joint under the Dayabhaga law
- all ancestral property in the hands of a sole surviving coparcener
- impartible property, unless there is special custom prohibiting its alienation or terms of the tenure prohibiting its alienation
- stridhana property of a female which is a woman’s absolute property
- Small portions of property inherited by a widow.
- Movable property inherited or obtained by way of a share on partition by a widow under the Mayukha and
- Small portions of coparcenary property in the hands of a father
A gift under Hindu law need not be in writing. However, a gift under the law is not valid unless it is accompanied by delivery of possession of the subject of the gift from the donor to the donee.
However where 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.
Gifts by Hindus where transfer of property act applies.
A gift under the above act can only be effected in the following manner:
- 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 a movable property, the transfer may be effected by a registered document signed by the donor or by delivery.
Capacity to make a gift
Every Hindu Male or Female, who is not a minor and is of sound mind, can dispose of his property by gift or Will. The donor must be a major within the meaning of Section 3 of the Majority Act; if he is not, he cannot make a gift. A coparcener of Hindu joint family cannot make a gift of his undivided interest without the consent of all the other coparceners. However, he can make a Will of such property
Capacity of the donee to acquire:
A donee must be a person in actual existence or in contemplation of law when the gift or bounty is to take effect. The donee may be a minor or an idiot or one incapable of inheriting due to some personal disability.
Gifts to unborn persons
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. To remove this incapacity, this rule has been altered by 3 acts namely:
- The Hindu Transfers and Bequests Act 1914,
- Hindu Disposition of Property act 1916, and
- The Hindu Transfers and Bequests (City of Madras) Act 1921
Reservation of life interest. – A gift of property is not invalid because the donor reserves the usufruct of the property to himself for life.
Conditions restraining alienation or partition
Where property is given subject to a condition absolutely restraining the donee from alienating it, or it is given to two or more persons subject to a condition restraining them from restraining it, the condition is void, but the gift itself remains good.
Revocation of gift
A gift once completed is binding on the donor, and it cannot be revoked by him unless it is obtained by fraud or undue influence.
Gift in fraud of creditors
A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors.