You are on page 1of 27

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

Project of Family Law

“Gifts Under Hindu Law ”

Submitted to:- Mr. Ravi Ranjan (Faculty of Family Law)

Submitted by:- Hrishikesh Mishra, B.A. LL.B. Hons., Roll No. 1131, Sem. IV.
Acknowledgement

Writing a project is one of the most significant academic challenges, I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who gave
their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Mr. Ravi Ranjan without the kind support
and help of whom the completion of the project was a herculean task for me. He donated his
valuable time from his busy schedule to help me to complete this project.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very useful
and could not be ignored in writing the project. I want to convey most sincere thanks to my 3rd
year senior Mr. Utkarsh Shukla, for helping me throughout the project.

Last but not the least, I am very much thankful to my parents and family, who always stand aside
me and helped me a lot in accessing all sorts of resources.

I thank all of them !

Hrishikesh Mishra
R.No. 1131, Sem IV
B.A. LL.B. (H)

2|Page
Contents
Acknowledgement .......................................................................................................................... 2

Research Methodology ................................................................................................................... 4

Research Topic............................................................................................................................ 4

Aims and Objectives ................................................................................................................... 4

Methodology Adopted ................................................................................................................ 4

Sources of Data ........................................................................................................................... 4

Mode of Citation ......................................................................................................................... 4

Chapterisation: ............................................................................................................................ 5

1.Introduction .................................................................................................................................. 6

Historical Development .............................................................................................................. 6

Defining Gifts ............................................................................................................................. 6

2.Kinds of Gifts ............................................................................................................................. 10

3.Important conditions of a valid gift under Hindu Law ? ........................................................... 12

4.What and who can Gift? ............................................................................................................ 16

What property may be gifted .................................................................................................... 16

Revocation of Gifts ................................................................................................................... 20

5.Judicial Approach ...................................................................................................................... 22

6.Conclusion and Suggestions ...................................................................................................... 25

Conclusion ................................................................................................................................ 25

Suggestion ................................................................................................................................. 25

Bibliogaphy ................................................................................................................................... 27

Books ........................................................................................................................................ 27

Websites .................................................................................................................................... 27

3|Page
Research Methodology

Research Topic
Gifts Under Hindu Law

Aims and Objectives


The Researcher intends to research on:

 What properties can be given as a gift?


 The simultaneous existence of gift under hindu law and property (gift) under property
law.
 Various Legal provisions relating to gift.

Methodology Adopted
The researcher has preferred doctrinal method of research. The topic “Mob Justice and Law” will
require me to access CNLU library and various authenticated websites on internet.

Sources of Data
Primary Sources: Laws, Acts.

Secondary Sources: Books, Newspapers, Articles, Journals

Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this project.

4|Page
Chapterisation:

1. Introduction
2. Kinds of Gifts
3. Important conditions for making Gift
4. What and Who can Gift?
5. Judicial Approach
6. Conclusion

5|Page
1.Introduction

Historical Development
From the very beginning, dan (gifts) have been an important aspect of Hindu law. The subject
has been dealt with by our sages under the title "Resumption of Gifts," which is one of the
eighteen titles of law. This is also a unique feature of Hindu law of gifts that, while in other
systems of law, a gift is clothed in a garb of sale, here sales are given the' appearance of gift.
This indicates the importance of, and sanctity attached to the gifts in Hindu law. The Hindu sages
gave very large powers to a person to make gifts of property. But only that should be given in
gift which has been left after the expenses of maintaining the family have been defrayed. The
Hindus, from the very beginning, have been making gifts for Istha and Purta, which are
recognized religious acts. In modern Hindu law, a Hindu has full power of alienation over his
separate property. He may make a 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 fatherekarta can make gifts of love and affection. The Hindu
female holder of stridhan had power to dispose of stridhan by gift. A woman holder of woman's
estate can also make gifts for certain purposes. The position of females has 'been substantially
modified by S. 14, Hindu Succession Act, 1956. Now she has unfettered power of making gift of
all her properties which she holds absolutely. The modern Hindu law of gifts largely consists of
Chapter II and Chapter VII of the Transfer of Property Act, 1882, and partly of the case law
under the title of Hindu law of gifts. As to the details of the former, reference should be made to
the relevant provisions of the Transfer of Property Act.1

Defining Gifts
We would state briefly the law under both the heads. Definition of gifts and formalities. Section
122, Transfer of Property Act, 19722 defines a gift as under "Gift is the transfer of certain
existing movable and immovable property made voluntarily and without consideration, by one

1
Paaras Diwan, Tenth edition, page no. 558, para III
2
"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without
consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the
donee.

6|Page
person, called the donor, to another, called the donee, and accepted by or on behalf of the
donee." According to the Mitakshara, a gift is defined as under : "Gift consists in the
relinquishment (without consideration) of one's own right (in property) and the creation of
another man's right is completed on that other's acceptance of the gift, but not otherwise."

Under Hindu law, no writing was necessary for the validity of a gift. Hindu law insisted on the
delivery of possession.' No gift could be complete without the delivery of possession and once
possession was delivered, there remained nothing else to be done to complete the gift. Mere
registration was not enough. However, if from the nature of the subject-matter of the gift,
delivery of possession could not be made, it was enough to validate the gift if the donor did all
that he could do to complete it.' But that law stands abrogated as the provisions of the Transfer of
Property Act apply to Hindu gifts. Under modern Hindu law, compliance with the provisions of
the Act, irrespective of the fact whether possession has or has not been given, is necessary.

Section 123 of the Act provides for the formalities thus :

For the purpose of making a gift of immovable property, the transfer of immovable property
must be effected by a registered instrument signed by or on behalf of the donor, and attested by
at least two witnesses.3

For the purpose of making a gift of movable property, the transfer may be effected either by a
registered instrument signed as aforesaid or by delivery. It should be noted that the Transfer of
Property Act does not dispense with the requirement that gift must be accepted by the donee.
Mere execution of gift deed without the acceptance of the gift by the donee is not enough.
However, the requirement of delivery of possession is no longer an indispensable condition. 4

A gift, in the law of property, is the voluntary transfer of property from one person (the donor or
grantor) to another (the donee or grantee) without full valuable consideration. In order for
a gift to be legally effective, the donor must have intended to give the gift to the donee (donative
intent), and the gift must actually be delivered to and accepted by the donee.

Gifts can be either:

3
http://www.advocatekhoj.com/library/lawareas/personal/gift.php
4
Paras Diwan, Tenth edition, page no. 555, para III

7|Page
 lifetime gifts (inter vivos gift, donatio inter vivos) - a gift of a present or future interest
made and delivered in the donor's lifetime; or
 deathbed gifts (gift causa mortis, donatio mortis causa) - a future gift made in
expectation of the donor's imminent death. A giftcausa mortis is not effective unless the
donor actually dies of the impending peril that he or she had contemplated when making
the gift, i.e. these gifts can only be made when the donor is in a terminable condition5

Gifts can also be:

 outright - made free of any restrictions, such as being subject to a trust;


 onerous - made with a burden or obligation imposed on the donee; or
 remunerative - made to compensate for services rendered

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.
The conception of the term "gift" as used In the Transfer of Property Act is somewhat different
from the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or
right by one person to another in accordance with the provisions given in the Mohammedan law
and includes-

A hiba, an immediate and unconditional transfer of the ownership of some property or of some
right, without any consideration or with some return (ewaz); and An ariat, the grant of some
limited interest in respect of the use or usufruct of some property or right.
Where a gift of any property or right is made without consideration with the object of acquiring
religious merit, it is called sadaqah.

Gift is a 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. According to
the Mitakshara, “a gift consists in the relinquishment, without consideration, of one’s own right

5
Chisholm, Hugh, ed. (1911). "Donatio Mortis Causa". Encyclopædia Britannica 8 (11th ed.). Cambridge
University Press. p. 408.

8|Page
in 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.”

Property received in gift.—Under this head, the gift of the following properties may be
considered :

 gift of his self-acquired property by the father to son; and


 gift of joint family property
 by father-Karta, or
 by Karta.

Thus gift is a voluntary transfer of personal property without consideration. A parting by owner
with property without pecuniary consideration. A voluntary conveyance of land, or transfer of
goods, rom one person to another, made gratuitously, and not upon any consideration of blood or
money.6

6
Black's Law Dictionary defines ''GIFT''

9|Page
2.Kinds of Gifts

Hindu Law defines gift as “the creation of another person’s proprietary right after the extinction
of one’s own proprietary right in the subject matter of the gift.” Gift under Shastric Hindu law
need not be writing, but a gift under that law is not valid unless it is accompanied by delivery of
possession of thesubjects of the gift from donor to the donee. Mere registration of a deed of a 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 done. There is nothing as such kinds of gifts, but depending upon
the kind of property being gifted and the way it is being gifted, it can be classified as following:

Oral Gift of an Immoveable Property-

In view of sec. 123 of Transfer of Property Act, a gift of immovable property, which is not
registered, is bad in law and cannot pass any title to the donee. Any oral gift of immovable
property cannot be made in view of the provisions of sec. 123. Mere delivery of possession
without a written instrument cannot confer any title.7

Onerous Gift-

'Onerous gift' is a gift made subject to certain charges imposed by the donor on the donee.''

The rule is based on equity, which speaks the person who accepts the benefit of a transaction
must also accept the burden of the same.

It applies equally to Hindus and Mahomedans.

7
Smt. Sudha Devi And Anr. vs Smt. Shanti Devi,1995 (2) BLJR 1328

10 | P a g e
Written Gifts

A gift under pure Hindu Law need not be in writing. But 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.
Mere registration of a 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. But 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 'lift, so as to entitle the donee to obtain possession.8

With regard to movable property this Section allows two alternative modes of transfer viz.
Registered deed signed by or on behalf of the donor and Delivery of possession. A gift of
immovable property, no matter what the value of the property, can only be made by a registered
instrument. This provision excludes every other mode of transfer and even if the intended donee
is put in possession a gift of immovable property is invalid without a registered instrument.9

8
Mulla's Hindu Law, 8th ed., p.422, para II
9
Section 123 of the Transfer of Property Act, 1882.

11 | P a g e
3.Important conditions of a valid gift under
Hindu Law ?

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 effected 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 effected 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.10

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.

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.11 (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

10
http://legalsutra.com/837/gifts-under-transfer-of-property-act/
11
G.C Venkatasubba Rao, Commentary on the Transfer of Property Act (Madras: C. Subbiah Shetty and Sons,
1990) pg 458

12 | P a g e
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.

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, has been abrogated by S. 123 of that Act. Under
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, as is
clear from S. 122 of that Act.

Under the provisions of Chapter II, Transfer of Property Act, 1882, the following conditions
must be satisfied, otherwise the gift will not be valid : if a gift to an unborn person is proceeded
by a prior disposition, the gift must be of the whole of the remaining interest of the transferor in
the property,' (ii) the gift should not offend the rule against perpetuity,8 (iii) if the gift to a class
of persons with regard to some of them is void as offending (it) or (ii), the gift fails in regard to
those persons only and not in regard to the whole classes 9 and (iv) if a gift to an unborn person
is void under (0 or (ii), any gift intended to take effect such gift is also void.

i. Relinquishment of one's proprietory right in the property. Yet it should be without any
consideration.
ii. Merely registering the gift deed does not afford to pass the title of the property.
iii. Creation of right of any person must be completed by acceptance.
iv. A gift is totally different from a surrender by a Hindu widow where she does not in fact
or in law purport to transfer any interest in the property surrenders. Yet, in the case of
Narbada Bai vs Mahadeo, it was held that in case of transfer of the whole estate, the
reversioner takes the same subject to the liability for her maintenance. It is thus vividly
known that the reversioner is responsible for her debts, if she relinquishes the same.

13 | P a g e
v. Where delivery of possession is enough to complete the transaction of a gift, is abrogated
under section 123 of the Transfer of Property Act. However, the restrictions on power to
enter into the transaction of gift under personal law exist without any change.

IS REGISTRATION MANDATORY ?

Under Section 123 of the Transfer of Property Act, a gift of property, which is not registered, is
bad in law and cannot confer title to the donee. Gift Deed should be stamped and registered as
required. Mere delivering possession without a written instrument cannot confer any title. A deed
cannot be dispensed with even for a property of small value. Attestation by two witnesses is
required. This provision excludes every other mode of transfer and even if the intended donee is
put in possession, a gift of property is invalid without a registered instrument. A gift made by a
Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift
deed is executed, it is not exempt from registration in accordance with the provision under
Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt
the written gift deed executed by a Mohammedan.

A gift under pure Hindu Law need not be in writing. But 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.
Mere registration of a 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. But 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 'lift, so as to entitle the donee to obtain possession; As
regards Hindu gifts to which the Transfer of Property Act applies, the rule of pure Hindu Law
that " delivery of possession is essential to the validity of a gift," is abrogated by Section 123
of that Act. Under that Act delivery of possession is no longer necessary to complete a gift nor is
mere delivery sufficient to constitute gift except in the case of movable property.12

12
G.C Venkatasubba Rao, Commentary on Principles of Hindu Law (Madras: C. Subbiah Shetty and Sons, 1990) pg
745

14 | P a g e
Therefore, for Gift under Hindu Law Possession is very much important, and a gift once validly
completed is not defensible at the will of the donor and furthermore, a gift by father to a son
followed by possession becomes absolute and is irrevocable.

15 | P a g e
4.What and who can Gift?

Gift is a 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.

What property may be gifted


 A Hindu may dispose of by gift his separate or self acquired property, subject in certain
cases to the claims for maintenance of those he is legally bound to maintain.
 A coparcerner, may dispose of his coparcernary interest by gift subject to the claims of
those who are entitled to be maintained by him.
 A father may by gift dispose of the whole of his property, whether ancestral or self
acquired, subject the claims of those he is entitled to be maintained by him.
 A female may dispose of her stridhana by gift or will, subject in certain cases to the
consent of her husband.
 A widow may in certain cases by gift dispose of a small portion of the property inherited
by her from her husband, but she cannot do so by will.
 The owner of an impartible estate may dispose of the estate by gift or will, unless there is
a special custom prohibiting alienation or the tenure is of such a nature that it cannot be
alienated.
 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 maintenance of those members of his family,
whom he is legally bound to maintain. (See Sections 18-22 of the Hindu Adoptions and
Maintenance Act, 1956.)
 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 School, 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.

16 | P a g e
 Under the Dayabhaga law, a father is entitled to dispose of even the whole of his property
(whether ancestral or selfacquired), subject to the claims of those who are entitled to be
maintained by him.
 Before 1956, a female Hindu was entitled to dispose of only her stridhana property by
gift. Today, she can dispose of all her property by gift, whether it be stridhana, or whether
it is obtained by her by inheritance from her husband or otherwise in whatsoever manner.
 Earlier, a widow could dispose of a part of her widow’s estate by gift to her daughter on
the occasion of the daughter’s marriage or to her son-in-law on such an occasion. This,
however, could not be done by a will. However, her rights have now been considerably
enlarged by S. 14 of the Hindu Succession Act, 1956.
 The owner of an impartible 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 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 by father of self-acquired property. The question is, if a father gives his self-acquired
property, movable or immovable, by gift inter vivos or by will to one of his sons, to the
exclusion of others, whether, the son will take it as ancestral property. The difficulty arises on
account of two principles of Hindu law that come into application (i) Every Hindu has full power
of disposal over his separate property; (ii) When self-acquired property of a Hindu devolves on
his son by inheritance, the son takes it as ancestral property in which his son has an interest by
birth. In accordance with the first principle, the father has the power of giving the property in
gift. But, can he, by changing the mode of devolution of property, change the character of the
property? In other words, had he allowed it to devolve by the natural mode, i.e., intestate
succession, the property would have been ancestral property in the hands of his son, but he
changes the mode of devolution and makes it to devolve by gift, can he thereby change the
character of the property? It may be noted that if A who has three sons, B, C and D, makes a gift

17 | P a g e
of his self-acquired property to C to the exclusion of B and D, the question is not whether B or D
can challenge it. They obviously cannot. The question is : can C's sons claim an interest in it by
birth? Before 1953 there was a difference of opinion among our High Courts and as many as five
views existed. But in 1953, the Supreme Court in State of Arunachal Pradesh v. Murugantha,
after considering the texts and the various decisions of the High Courts, said that the answer to
the, question primarily depends upon the intention of the father. The intention is to be gathered
from the terms of the deed. In other words, if the father expressed a clear intention in the deed
that the son will take it as his separate property, or joint family property, the son will take it
accordingly. In case the father has not expressed his intention clearly, then the intention is to be
gathered from the language of the deed and the surrounding circumstances. This is not a very
satisfactory test. It seems that if it is shown that the so called gift was not a gift but an integral
part of a scheme of partition, then the donee son will take the property as joint family property. It
is submitted that the entire argument is misconceived. It may be argued that had the father
allowed it to devolve by inheritance, other sons too would have got an interest in it and
constituted a coparcenary. But the father did not allow it to devolve that way and made a gift of
it. Then why should we talk of donee's son's claim, and why should we also not talk of the claim
of other sons of the donor? It is submitted that simple rule should be that the donee-son takes it
as his separate property, subject to any restrictions that the father might have imposed on the gift.

Gift to an unborn person. Hindu law did not recognize gift to an unborn person.' Now the
Hindu Transfers and Bequests Act, 1960, a Union law, has been made applicable to the whole of
India, except the State of Jammu and Kashmir, under which a gift to unborn person can be made.
A gift once made and completed in all respects cannot be revoked by the donor unless it was
obtained by fraud or undue influence.' However, a gift made with the intention to defraud or
delay the creditors is voidable at the instance of the creditors. Under pure Hindu law, a gift
cannot be made in favor of a person who was not in existence at the date of the gift. 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

Gift by father of a small portion of joint family property. It has been all along recognized that
the father-Karta has the power of making a gift of small portion of movable joint family property
as a gift of love and affection. A gift of love and affection is made to a person with whom the

18 | P a g e
father stands in the relationship of love and affection, such as a wife, son, daughter, daughter-in-
law. In every case, gift has to be a small portion of the joint family movable property. What is a
small portion will depend upon the total quantum of joint family property.' Before 1964, the view
was that the father cannot give any portion of immovable property in gift. But in 1964 the
Supreme Court in Guramma v. Mallappal said that the father can make a gift of love and
affection to a daughter of a small portion of immovable property, either at the time of marriage
or subsequently, as gift to daughter is a modem version of a share in the joint family property to
which she was entitled in the ancient law.' It has also been held in R. Kuppayee v. Raja
Gounder,4 that father can gift ancestral immovable property to his daughter within reasonable
limits. This view is not correct as there is hardly any textual authority for this view. In later cases
the Supreme Court has confined the ratio of their decision to the gift to daughter. Thus, it was
held that gift of immovable property could not be made to any other relation, not even to one's
wife.' In the hands of a donee such property is his separate property, unless given with
limitations.

Gift of joint family property by the Karta. It is an established rule of Hindu law that the Karta
of the joint family, whether father or someone else, has the power to make a gift of ancestral
immovable as well as movable property within the reasonable limits in discharge of his religious
duties or for pious purposes. Such a gift can be inter vivos and not by will be in the hands of a
donee the property will be his separate property (see for details, Chapter XIV, Part II,
Indispensable Duties).

Property jointly acquired by coparceners.- Here the question is whether the property jointly
acquired by coparceners with their joint labour and without the aid of the joint family property is
joint family property or joint property of the acquirers. It is now settled law that presumption is
that the property so acquired will be joint family property in which sons will acquire an interest
by birth, unless it is proved that the acquirers intended to own the property as co-Downers
between themselves in which case it will be joint property, as distinguished from joint family
property. In case the acquirers can show an agreement that they acquired the property as
partners, the property will be partnership property, governed by the Indian Partnership Act, 1932.
However, if only some of the coparceners jointly acquire property without the aid of any

19 | P a g e
ancestral nucleus, the presumption will not apply and such property will be presumed to be joint
family property unless contrary is proved.

Streedhan: Streedhan is the property that a woman obtains at the time of her marriage, it differs
from Dowry in the way that it is the voluntary gifts given to a woman before or after her
marriage and has no element of coercion. The Courts have also made this distinction clear.
Women have an absolute right over their Streedhan. The word ‘’Streedhan’ has been derived
from the words ‘Stri’ meaning a woman and the word ‘dhana’ means property. Therefore on
combining these two words we get ‘property of woman’ her ‘Streedhan’. This is a concept,
which came down all the centuries from the Hindu Smritis but has today, engulfed all forms of
marriages in all visible castes and regions.

i. Gifts made to a woman before the nuptial fire.


ii. Gifts made to a woman at the bridal procession
iii. Gifts made in token of love by father-in-law, mother-in-law
iv. Gifts made by father, mother and brother

Revocation of Gifts
The Privy Council has laid down that after delivery of the deed of gift and before registration the
donor cannot revoke the gift.

Section 126 of the Transfer of Property provides for conditions where a gift can be revoked. The
following are essential ingredients for revocation of gift:

 there must be an agreement between the donor and donee that the gift shall be suspended
or revoked on the happening of a specified event;
 such event must be one which does not depend upon the will of the donor;
 the condition as to the suspend or revocation should be agreed to by the donee at the time
of accepting the gift. And,
 there must exist a ground , except want or failure of consideration, on which a contract
may be rescinded.
 the condition should not be illegal, or immoral and should not be repugnant to the estate
created under the gift.

20 | P a g e
 Section 126 is controlled by sec. 10. As such, a clause in the gift deed completely
prohibiting alienation is void in view of the provisions contained in sec. 10.
 A gift, which was not based on fraud, undue influence or misrepresentation nor was an
onerous one, cannot be cancelled unilaterally. Such a gift deed can be cancelled only by
resorting to legal remedy in a competent court of law.

Thus, 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.

21 | P a g e
5.Judicial Approach

Shakuntala v. State of Haryana13

The Supreme Court stated that it is one of the essential requirements of a gift that it it should be
made by the donor ‘without consideration’. The word consideration has not been defined in the
Transfer of Property Act, 1882 but we have no doubt that it has been used in the Act in the same
sense as in the Indian Contract Act, 1872 and excludes natural love and affection. If it were to be
otherwise a transfer would really amount to a sale or an exchange for each party will have the
rights and be subject to the liabilities of a seller as to what he gives and have the rights and be
subject to the liabilities of a buyer as to what he takes. It is the essence of a gift that it should be
without consideration. The principles laid down in the Indian Contract Act,1872 relating to free
consent would apply in determining whether a gift is voluntary. Law as to undue influence is the
same in the case of a gift inter vivos as in the case of a contract. It was held that a gift made
under undue influence and not voluntarily was void. The court stated that while trying a case for
undue influence it must consider two things: (a) Whether the relation between the donor and
donee is such that the donee is able to dominate the will of the donor. (b) Has the donee used that
position to obtain an undue advantage over the donor?

Ganga Bakash vs. Jagat Bahadar14

Under Hindu law, once a gift is complete, it is binding on the donor, and it cannot be revoked by
him, unless it has been obtained by fraud or under influence. The courts have also observed that
where a gift is made by a Hindu widow, the burden lies upon the done to show that the
widow made the gift with a full understanding.

13
(1979)3 SCC 226
14
(1898) 23 Gal 15.

22 | P a g e
Deo kura vs. Man kura (1894)15

A gift was set aside in a suit brought eight years after the date of the gift on the ground that
the document of the gift was not explained to the donor.

Pratibha Rani vs. Suraj Kumar 16

While hearing the case, the Supreme Court observed that the complainant (Pratibha Rani) had
suffered by their in-laws when she was harassed and denied her Streedhan by his husband’s
family. The Apex Court observed that the case portrays the plight of an estranged married
woman. She even suffered large during the legal process, the court observed. Pratibha Rani was
married to Suraj Kumar on February 4, 1972. Rani’s family had given Rs 60,000, gold
ornaments, and other valuable items to the Kumar’s family on their demand. But soon after Rani
entered her marital home she was started being tortured by her in-laws for dowry. She was
forcefully kicked out of her in-laws house with her two minor children and was denied money
and other essentials for survival17

Karunamoyee vs Maya Moyi18

It was observed that the widow If simply withdraws herself from the estate then the reversioner
steps into the inheritance as a matter of law.

Guramma v. Mallappal19

Supreme Court in Guramma v. Mallappal said that the father can make a gift of love and
affection to a daughter of a small portion of immovable property, either at the time of marriage

15
1979 Cri. L J 493
16
AIR 1985 SC 628
17
This case has been followed in following case also, Raginiben G. Tank v. Gunvantlal K. Tank & Ors. [2003 (3)
G.L.R. 2027]
18
AIR 1948 Cal. page 84
19
(1898) 23 Gal 15

23 | P a g e
or subsequently, as gift to daughter is a modem version of a share in the joint family property to
which she was entitled in the ancient law.

Bhagatrai v. Ghanshyamdas20

It was held that where a gift has been effected by a registered instrument duly attested and the
gift has been acted upon by the donee, the title legally passes to the donee and cannot be defeated
by any intention of the donor to the contrary.

Other relevant case laws:

Parbati vs Baijnath Pathak And Anr. 14 Ind Cas 61

Vasudev Ramchandra Shelat vs Pranlal Jayanand Thakar And Ors ,1974 AIR 1728

Firm Mukand Lal Veer Kumar & Anr vs Sri Purushottam Singh & OrS,1968 AIR 1182

Udaya Naik vs Lokanath Naik And Ors. ,AIR 1954 Ori 195

Ashiq Ali And Ors. vs Smt. Rasheeda Khatoon And Anr. ,2005 (2) AWC 1342

Smt. Sanjukta Ray vs Bimelendu Mohanty And Ors. , AIR 1997 Ori 131

Chennupati Venkatasubbamma vs Nelluri Narayanaswami ,AIR 1954 Mad 215

Bhagabat Basudev And Ors. vs Api Bewa And Ors. ,AIR 1974 Ori 180

Vettikuti Naydamma (Died) And ... vs Mupparaju Madhusudhana Rao And ,1996 (2) ALT 185

Fateh Ali (Died) Per Lrs. And Ors. vs M.A. Aleem And Anr. ,2003 (6) ALD 611

T.R. Srikantaiah Setty vs Balakrishna And Another ,ILR 1999 KAR 2953

Balbhadar Singh vs Lakshmi Bai , AIR 1930 All 669

Hari Singh And Ors. vs Kallu And Ors. , AIR 1952 All 149

Bishwanath Raut And Ors. vs Babu Ram Ratan Singh And Ors. ,AIR 1957 Pat 485

20
ILR 1999 KAR 2953

24 | P a g e
6.Conclusion and Suggestions

Conclusion
Gift is the transfer of certain existing movable and immovable 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 done. Despite the concept of expectation of reciprocity, a gift is known to
be free. Any person who is the legal owner of a property can alone make a gift of his property.
Basically, a gift is the transfer of something without consideration. In other words, it can
be said that a voluntary transfer of a property in consideration of love and affection to person is
known as ''GIFT''. It is thus vividly known that '' the chief characteristic of a gift is that it is a
transfer without any consideration.'' A gift consists in the relinquishment, without consideration,
of one’s own right in 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. 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. 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.

Suggestion
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 effected 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

25 | P a g e
regards movable property, the Act provides that a gift may be effected 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. So the
suggestion is that proper amendments should be made under the traditional Hindu law regarding
the procedure of making of the gift, so that it could become easy for states where transfer of
property act is not applicable.

26 | P a g e
Bibliogaphy

Books
Paras Diwan, Modern Hindu Law, 11th Edition

G.C Venkatasubba Rao, Commentary on the Transfer of Property Act (Madras: C. Subbiah
Shetty and Sons, 1990)

Mulla, Transfer of Property Act, 1882 Solil Paul ed. (9th ed.) (New Delhi: Butterworths, 2000).

Nishi Purohit, Principles of HinduLaw (New Delhi: Orient Publishing Company, 1998).

Syed Khalid Rashid, Hindu Law (lucknow: Eastern Book Company, 1996).

Websites
http://legalsutra.com/837/gifts-under-transfer-of-property-act/

http://www.advocatekhoj.com/library/lawareas/personal/gift.php?Title=Gifts%20under%20Hind
u%20Law

http://www.shareyouressays.com/117176/legal-provisions-regarding-gifts-under-the-hindu-law

http://www.legalserviceindia.com/articles/transfer.htm

http://www.lawstudentshelpline.com/index.php/transfer-of-property-act/2-uncategorised/174-q-
define-gift-discuss-the-essentials-of-a-valid-gift

http://www.lawctopus.com/academike/streedhan-right-woman/

27 | P a g e