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FINAL RESEARCH PROJECT OF

THE TOPIC:-

FAMILY LAW-2 ON

gift under hindu law


PRESENTED BY: - KUMAR MANGALAM
B.A.LLB, 4th SEMESTER, 2nd YEAR
ROLL NO.:- 936
SUBMITTED TO: - RAVI RANJAN SIR
Date:-

ACKNOWLEDGEMENT
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I am feeling highly elated to work on the topic GIFT UNDER


Hindu LAW under the guidance of my FAMILY LAW-2 faculty. I am
very grateful to her for her exemplary guidance. I would like to
enlighten my readers regarding this topic and I hope I have tried my
best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose


cooperation this project was not possible. Apart from all these, I
want to give special thanks to the librarian of my university who
made every relevant materials regarding to my topic available to
me at the time of my busy research work and gave me
assistance. And at last I am very much obliged to the God who
provided me the potential for the rigorous research work.

Thanking you
Kumar Mangalam
936
C.N.L.U.

Table of content:-

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SL.NO
.

CONTENTS

PAGE
NO.

1.

ACKNOWLEDGEMENT

2.

RESEARCH METHODOLOGY, OBJECTIVE 4


and CHAPTERISATION

3.

INTRODUCTION

4.

ESSENTIALS OF GIFT

5.

PROPERTIES THAT COULD BE GIFTED

6.

COMPARISION WITH MUSLIM LAW

7.

CONCLUSION

BIBLIOGRAPHY

Objective of the researcher


The objective of the researcher is to find out
1. Devolution of gift under Hindu law.
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5-6
7-

2. Comparison between devolution of gift under Hindu law and


Muslim law.

Research methodology
The researcher has used doctrinal method for doing this research
project work. The researcher has relied on various books and online
databases, documents etc.
Primary books: 1. Dr. Paras Diwan, Family law, 10th edition, reprint- 2014,
Allahabad law agency;
2. R.K.Agarwala, Hindu law, 23rd edition, Central Law Agency,
Secondary sources:1. http://www.legalindia.com,
2. http://www.shareyouressays.com.
3. http://lawstudentshelpline.com.

HYPOTHESIS
THE HYPOTHESIS OF THE RESEARCHER IS AS FOLLOWS:1. Anyone could be donor and donee.
2. There is no difference between gift under Hindu law and
Muslim law.

Chapterisation
1.
2.
3.
4.
5.
1.

INTRODUCTION
ESSENTIALS OF GIFT
PROPERTIES THAT CAN BE GIFTED
COMPARISION WITH MUSLIM LAW
CONCLUSION

Introduction

This research work deals with historical aspect of gift under Hindu
law in introduction part, essentials for a valid gift, donors and
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donees qualification, properties that could be gifted. The most


important the comparison between gift under Hindu law and Muslim
law.
From the historical times, Dan (gifts) has been an important aspect
of Hindu law as well as Muslim law. Resumption of Gifts, which is
one of the eighteen titles of the law, is also a unique feature of
Hindu law. The Hindus, from very beginning, have been making gifts
for Istha and Putra, which are recognized as religious work. In
Modern Hindu law, a Hindu has full power of alienation over his
separate property. He may make gift inter vivos with respect to his
undivided interest in the coparcenary property. The Karta is allowed
to make gifts of small portions of the joint family property for certain
purposes, and father-Karta could make gifts of love and affection.
The Hindu female holder of stridhan has power to dispose of
stridhan by gift. A woman holder of womans estate can also make
gifts for certain purposes. 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. 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.1
Gift consists of the relinquishment(without consideration) of ones
right( in property) and certain of another mans right is completed
on that others acceptance of the gift, but not otherwise. 2 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. Under Hindu law, no writing was
necessary for validity of a gift. Hindu law insisted on the delivery of
possessions.3 No gift is completed without delivery of possessions
1 Section-122, transfer of property act, 1972
2 Gift defined according t9o Mitakshara law
3 Mukhtar khan, v. Ghalao khan, AIR 1997(Punjab customary law)
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and once possession was delivered, there remained nothing else to


be done to complete the gift. Mere registration was not enough. 4
Any property either movable or immovable property could be gifted.
Section 123 of the act provides the condition for making gift of
immovable and movable property.
For immovable property, the transfer of immovable property
must be affected by a registered instrument signed by or on behalf
of the donor, and attested by at least two witnesses.
For movable property, the transfer may be affected either by a
registered instrument signed as aforesaid or by delivery. Hindu law
did not recognize gift to an unborn person. 5 But according to Hindu
Transfer and Bequests Act, 1960, states that gift to unborn person
can be made. A gift once made and completed in all respects cannot
be revoked by donor unless it was obtained by fraud or undue
influence.6 But, a gift made with intention to defraud or delay the
creditors is voidable at instance of the creditors.7
DONATIO MORTIS CAUSA- Donatio mortis causa defined as A
man may dispose by gift made in contemplation of death of any
movable property which he could dispose of by will. It can be made
orally or in writing, but intention to pass the property in the thing
given must be clear and the property is actually delivered and
accepted by the donee in the donors lifetime.8

4 Vasudeo, v. Narayan, (1883) 7 Bombay 131


5 This is what the Privy Council thought and laid down, though Hindu Law
recognized gift to unborn person.
6 Manigavri v. Narandas, (1891) 15 Bombay 546
7 Bisan v asmaida koer, (1884) 6 all 560 (P.C.)
8 Section 130 of Succession Act, 1925
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2. ESSENTIALS OF GIFT
The following are the essentials of a valid gift :1) The subject matter of the gift should be capable of
transfer, existing and certain.
The property that has to be gifted must be present at time of gifting
it. Gift cannot be transfer for future property. The property should be
certain and not bogus.
2) There should be two parties, in one side the donor and
in other side the donee.
A gift is void if the donee has not given his acceptance. Legal
guardian may accept on behalf of a minor. The donee is the person
who accepts the gift, by or on behalf of a person who is not
competent to contract. A minor therefore may be a donee; but if the
gift is onerous, the obligation cannot be enforced against him while
he is a minor. But when he attains majority he must either accept
the burden or return the gift. The donee must not be an
ascertainable person and be a donee under this section; nor can a
gift be made to an unregistered society.
3) The donor must be capable of gifting the property
The person must have competency to make contract, is capable of
becoming a donor and he can make gift. A minor, being incompetent
to contract is incompetent to transfer, and a gift by the minor would
therefore be void trustees cannot make a gift out of trust property
unless authorized by the terms of the contract. On behalf of a minor,
a natural guardian can accept a gift containing a condition that the
person nominated in the gift deed shall act as a manager of the
gifted property. Such acceptance would amount to recognition by

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the natural guardian of the nominated person as the manager or the


agent of minor for the purpose of such property.
4) The gift should be made without any consideration and
voluntarily.
For making any gift, donees consideration must not to be taken
while making the gift. There must be a clear and unambiguous
intention of the donor to make a gift. Declaration is a statement
which signifies the intention of transferor that he intends to make a
gift. A declaration can be oral or written. The donor may declare the
gift of any kind of property either orally or by written means.
5) There should be a transfer of interest on the part of the
donor.
6) The gift should be accepted by or on behalf of the
donee during his life time.
7) The acceptance must be made during the lifetime of the
donor.
Such acceptance must be made during the lifetime of the donor, and
while he is still capable of giving, if the done dies before acceptance,
the gift is void.
8) The donor and donee must be living persons.
9) In the event of gift of immovable property, there must be
a registered instrument properly attested by at least two
witnesses and signed by the donor.
10) In the event of gift of movable property, there may be a
registered instrument properly attested by at least two
witnesses and signed by the donor or by delivery of
possession in the same way as goods are sold.

3. Properties which can be disposed by Gift:


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
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maintenance of those members of his family, whom he is legally


bound to maintain.9
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, 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.
3. Under the Dayabhaga law, a father is entitled to dispose of even
the whole of his property (whether ancestral or self acquired),
subject to the claims of those who are entitled to be maintained by
him.
4. Before 1956, a female Hindu was entitled to dispose of only her
stridhan property by gift. Today, she can dispose of all her property
by gift, whether it be stridhan, or whether it is obtained by her by
inheritance from her husband or otherwise in whatsoever manner. 10
5. Earlier, a widow could dispose of a part of her widows estate by
gift to her daughter on the occasion of the daughters marriage or to
her son-in-law on such an occasion. This, however, could not be
done by a will.11
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. .
7. The owner of an impartibly 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.
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
9 Sections 18-22 of the Hindu Adoptions and Maintenance Act, 1956.
10 See Section 14 of the Hindu Succession Act, 1956.
11 However, her rights have now been considerably enlarged by S. 14 of the
Hindu Succession Act, 1956
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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.

Gift when complete:


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
affected 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 affected 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.12
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.

12 (Kalidas v. Kanhaya Lal. 11 Cal. 121)


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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.13Under 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.14

4. Comparision with gift under Muslim law

The English term gift is much wider than the Islamic word Hiba and
the two must not be confused. The term gift is generic and is
applied to a large group of transfers. The word Hiba, however, is
narrow and well-defined legal concept. Hiba is the immediate and
unqualified transfer of the corpus of the property without any return.
The concept of Gift or Hiba in Muslim law has existed from the very
inception of the religion, circa. 600 A.D. While Muslim Law has not
been shown to recognise the differentiation of land into estates, it
13 Has been abrogated by Section-123 of that Act.
14 Section-122 of that Act.
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does recognise the difference between the ownership of the land


and the right to enjoy it.
DIFFERENCE BETWEEN HIBA AND GIFT
HIBA (The Mohammedan law) GIFT (The English law)
As to a valid gift, under
i)
As
to
rights
in
Mohammedan
law,
three
property, under The
essentials
conditions
are
English
law,
is
required:
classified by a division
(i) declaration of gift by the
on
the
basis
of
donor
immoveable
and
(ii) an acceptance of the gift,
moveable property.
express or implied, by or on
ii)
The
essential
behalf of the donee, and
conditions of a valid
(iii) Delivery of possession of
gift are
the subject of gift.
(i)
The
absence
of
consideration;
(ii) the donor; the donee ;
(iii) the subject-matter;
(iv) the transfer; and the
acceptance
In Nawazish Ali Khan vs Ali Raza Khan, it was held that gift of
usufructs is valid in Muslim law and that the gift of corpus is subject
to any such limitations imposed due to usufructs being gifted to
someone else. It further held that gift of life interest is valid and it
doesnt automatically enlarge into gift of corpus. This ruling is
applicable to both Shia and Sunni.
What can be gifted UNDER MUSLIM LAW
It must be designable under the term mal.
It must be in existence at the time when the gift is made. Thus, gift
of anything that is to be made in future is void.
There is no demarcation between gifts under Hindu law, but under
Muslim law there are various kinds of gifts.
VARIOUS KINDS OF GIFT UNDER MUSLIM LAW
(i) Principle of Musha

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The word Musha means undivided part or share, a common


building or land. The gift of an undivided share in any property which
does not admit of partition is valid. An undefined share in a small
house or a small bath is mentioned as cases of Musha a gift of which
would be valid.
EXCEPTIONS
i. Gift of Mushaa is a property which is incapable of division.
ii. Gift by one heir to a co-heir
iii. Gift of a share in the zamindari.
iv. Gift of a share in a company.
v. Gift of a share in free-hold property.
vi. Gift of a share in which donee is in joint possession.
vii. When possession is taken under invalid gift.
viii. When gift is for poor or in the nature of sadquas.
ix. The gift of an undivided share in anything, which is of such a
nature that it can be used to better advantage in the undivided
condition, is valid.
(ii) HIBA-BIL-IWAZ
A Hiba bil-iwaz is in reality a transaction consisting of two separate
and distinct parts A Hiba (original gift by the donor of the donee)
and an iwaz (return gift by the donor to the donee) and an iwaz
(return gift by the donee to the donor). The term means gift with
return. The gift and the return gift are separate and distinct acts,
and where both are completed the transaction is called Hiba biliwaz.

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