(a) Requisites of a valid gift:
According to Mitakshara a gift is defined as:
“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 complete on that other’s acceptance of the gifts, but not other Section 122 of the Transfer of Property Act defines gift as “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 donee.”
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ADVERTISEMENTS:
A Hindu in all the schools of Hindu Law may dispose of by gift his separate property subject to claims and maintenance of those whom he is legally bound to maintain.
A coparcener under the Dayabhaga Law may dispose of his coparcenary interest by gift subject to the claims of maintenance to those whom he is bound to maintain.
Except the sole surviving coparcener no other coparcener under the Mitakshara Law has a right to dispose of his coparcenary property by gift.
ADVERTISEMENTS:
A female may dispose of her Stridhan by gift subject in certain cases to the consent of the husband. A widow may by gift dispose of small portion of property inherited by her from her husband.
The owner of an impartibly estate may dispose of by a gift unless there is a custom prohibiting him specifically from doing
A gift under the pure Hindu Law need not be in writing. But the delivery of possession of the subject of the gift from the donor to the donee is highly essential.
But this has been abrogated by Section 123 of the T.P. Act, 1882. Under this Act delivery of possession is no longer necessary to complete a gift, nor is mere delivery sufficient to constitute a gift, except for movable property. Section 123 of the Transfer of Property Act runs as follows:
ADVERTISEMENTS:
“(i) 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.
(ii) For the purpose of making a gift of the movable property, the transfer may be effected by a registered instrument signed as aforesaid or by delivery.”
In cases of gift by a Hindu to which the Transfer of Property Act does not apply, a gift may be made orally or in writing.
(b) Under the pure Hindu Law a gift cannot be made in favour of a person not in existence at the date of the gift.
To remove this difficulty, three special Acts were passed, namely, the Hindu Transfer and Bequests Act, 1914, the Hindu Disposition of Property Act, 1916 and the Hindu Transfer and Bequests (City of Madras) Act, 1921.
Gift in favour of an unborn person:
The rule as altered by these Acts stands as follows:
“No gift is invalid by reason only that any person for whose benefit it may have been made was not born at the date of the gift, if,
(a) The gift to an unborn person is preceded by a prior disposition; the gift shall be of the whole residue;
(b) The gift shall not offend the rule against perpetuities;
(c) a gift is made to a class of persons with regard to some of whom it is void under (a) or (b), the gift falls in regard to those persons only and not in regard to the whole class;
(d) If a gift to an unborn person is void under (a) or (b), any gift which was to take effect after such gift is also void.”
This rule is confined to the following transfers by way of gift:
(i) To transfers executed on or after the 14th February, 1914, by Hindu domiciled in the State of Madras except the city of Madras, and in the case of transfer executed before that date, to such of the dispositions thereby made as are intended to come into operation at a time which is subsequent to that Act Hindu Transfers and Bequests Act, 1914;
(ii) To transfer executed on or after the 20th Sept 1916 by a Hindu in any part of India except the State of Madras Hindu Disposition of Property Act, 1916;
(iii) to transfers executed on or after the 27th March, 1921, by a Hindu domiciled within the limits of the ordinary original civil jurisdiction of the High Court of Madras and in the case of the transfers executed before the dale, to such of the dispositions thereby made as are intended to come into operation at a time which is subsequent to the 14th February, 1914: Hindu Transfer And Bequests (City of Madras) Act, 1921.