Define gift. Can a Karta of a joint family gift co-parcenary property?

Question: Define gift. Can a Karta of a joint family gift co-parcenary property? Explain. [UPJS 2018]

Find the question and answer of Hindu Law only on Legal Bites. [Define gift. Can a Karta of a joint family gift co-parcenary property? Explain.]

Answer

Gifts consist of 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 acceptance of gifts:

I) By mental acceptance

II) By verbal acceptance

III) By corporeal acceptance

Under Mitakshara Law gift is the renunciation of his proprietary interest in favor of some other person without consideration. In this way, a right is created in favor of the person accepting the gift. However, this right occurs only after the acceptance and in no other way.

In the case of Gajadhar Malik v. Official Trustee of Bengal, 67 IA 129, it was established that according to the Mitakshara school, a gift can be oral or written because under Hindu Law it is not essential for the gift to be in writing.

In the case of Chandra Bhag v. Anandrao, 1939 ILR Nag 293, it was held that for the validity of the gift the acceptance by the other party is an essential element and the taking of possession is a mode of accepting the gift, however, this kind of gift can be by registered deed also.

Section 123 of the Transfer of Property Act, 1882, has been applied to gifts by Hindus by Section 129 of that Act. The Act came into force on the first day of July 1882. The provision of Section 123, Transfer of Property Act applies to all gifts made by Hindus in the territories to which that Act applies since the date on which the Act came into force in those territories.

As per the case of Dharmodas v. Nistarini, 1887 14 Cal 446, the effect of Section 123 of the Transfer of Property Act, 1882, is to dispense with the delivery of possession. However, the Act does not dispense with the necessity of acceptance as is clear from Section 122. The mere execution of a registered deed by the donor is no proof of acceptance by the donee. Acceptance must be proved as an independent fact.

Under the Transfer of Property Act vide its Section 122 the Term 'gift' has been defined. According to it, the gift is a voluntary transfer of immovable property by its owner without consideration.

In it, the donee himself or by some person on his behalf accepts the gift, and thereby the gift is complete. Such an acceptance should be given during the lifetime of donee till he is capable of giving the consent.

Under Hindu law, the followings are the elements of gift—

• Donor,
• Donee,
• Property of gift,
• Acceptance,
• Formalities.

Donor - The person who makes a gift on the property is referred to as a donor. He should be of sound mind and major. He should possess the right to make the gift i.e., he must have absolute ownership over the subject matter of the gift.

Donee - The person who receives the gift is referred to as donee. The gift is completed by the acceptance of the donee. He must be in existence. He can even be an incapacitated person, however in that case someone else should accept the gift on his behalf.

The subject matter of the gift 

Following properties can be validly and legally gifted to a person -

• Separate or self-acquired property, whether governed by Mitakshara or Dayabhaga.
• Stridhan.
• Impartible estate if not prohibited by custom.
• Coparcenary interest under Dayabhaga.
• The whole of the ancestral property by the father in Dayabhaga.
• Any part of the property received by a Hindu widow in inheritance can be given by her to her daughter or son-in-law at the time of marriage.
• Movable properties inherited by a widow under Mayukhavidhi.

Karta's capacity to give gifts 

A Karta or manager of a joint Hindu family can validly give in gift a small portion of the property for religious purposes to a stranger. But the gift will not be valid if Karta has given a gift to a person out of kindness.

Hindu law does not confer an unlimited power of the gift upon Karta, but it is only a limited right. The phrase 'for religious purposes' cannot be interpreted liberally or widely. So any gift given to a stranger out of kindness or love and affection by Karta will cease to be a valid gift. As was established in the case of Garimma v. Maliappa, AIR 1964 SC 510.

In the case of Madhusudan v. Bhagwan, (1929) 33 Bom. 441, it was held that the father can make gifts within strict limits to the daughter or son-in-law, or similarly other dear and near relations. But a gift to a stranger or a relative of a joint family would be void.

The father has also the power to make gifts of ancestral immovable property within reasonable limits for pious purposes. The term pious purposes should not be liberally construed. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But a gift to a stranger, however much the donor was beholden to him, cannot be sustained on the ground that it was made out of charity. The manager has no absolute power of disposal over joint family property.

Hindu Law – Notes, Case Laws, And Study Material

Test Series for Competitions