Gifts under Hindu Law

Concept of Gift

In Hindu Law, the concept of Gift (Dana or Daan) refers to the gratuitous transfer of property by one person to another without any consideration. A gift is essentially a transfer of ownership. The principles governing gifts under Hindu Law are derived from ancient texts, customs, and more recently, from general statutes applicable in India, particularly the Transfer of Property Act, 1882.

Traditional Hindu texts recognised the merit of giving gifts (Dana), especially for religious or charitable purposes. Legal rules developed around the capacity to give and receive gifts, the types of property that could be gifted, and the validity of the transfer.

Under modern Indian law, gifts by Hindus are primarily governed by the provisions relating to gifts in the Transfer of Property Act, 1882 (Sections 122-129), subject to any specific rules of Hindu Law that are not inconsistent with that Act. Section 122 of the Transfer of Property Act defines a gift as "a transfer of certain existing movable or 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 donee." The transfer must be accepted by the donee during the lifetime of the donor and while the donor is still capable of giving.

Distinction from Muslim Law (Hiba)

It is important to distinguish the concept of gift under Hindu Law (governed by the Transfer of Property Act, 1882) from the concept of gift under Muslim Law, known as Hiba. Hiba is governed by Muslim Personal Law and has distinct requirements that differ from those under the Transfer of Property Act, 1882.

Feature	Gift (Hindu Law)	Hiba (Muslim Law)
Governing Law	Primarily Transfer of Property Act, 1882 (subject to Hindu Law principles not inconsistent with TPA).	Muslim Personal Law (Sharia).
Requirements for Validity	Transfer of ownership (movable/immovable). Voluntary act. Without consideration. Acceptance by donee. For immovable property, requires registered instrument signed by donor, attested by at least two witnesses (Sec 123, TPA). For movable property, can be by registered instrument or by delivery (Sec 123, TPA).	Declaration of gift by the donor. Acceptance of the gift by the donee. Delivery of possession of the subject matter of the gift by the donor to the donee. (Registration is required if the property is immovable and the transfer is under the TPA, but Muslim Law itself primarily focuses on delivery of possession for validity, especially for movable property).
Revocability	Generally irrevocable once completed and accepted, except in limited circumstances (e.g., by mutual agreement, or if obtained by fraud/undue influence, or conditional gifts where condition is not met).	Generally revocable under certain circumstances (e.g., gifts from father to son), though restricted for some relationships. Revocation before delivery of possession is easier.

The requirement of a registered instrument for gifts of immovable property under Section 123 of the Transfer of Property Act, 1882 is a significant difference from Hiba, where delivery of possession is the essential requirement for completing the gift, and registration, though advisable, might not always be considered essential for validity under pure Muslim law principles, especially in states where the TPA is not fully applicable to Muslims.

Types of Gifts

Hindu Law texts and traditions recognised various types of gifts based on the purpose or context of the gift. These categories reflect the social and religious significance attached to giving in Hindu society.

Traditional Classifications (Examples)

While the prompt mentions "Dattaka-Chandrika and Dattaka-Mimansa," these are actually influential digests/commentaries on the law of adoption (Dattaka), not types of gifts generally. They deal with the rituals and rules for adopting a child, which involves the "gift" of a child by the biological parents to the adoptive parents, but are specific to adoption and not a general classification of property gifts. It seems there might be a misunderstanding in the prompt's reference here.

Based on traditional Hindu Law principles, gifts could be classified based on their purpose or the relationship between the donor and donee:

1. Dharma Dana: Gifts made for religious or charitable purposes (e.g., to temples, priests, or for public welfare like building tanks or rest houses). These were considered highly meritorious.

2. Priti Dana: Gifts made out of love and affection (e.g., gifts from father to son, husband to wife, parent to daughter at marriage). These were often made within the family.

3. Stridhan: While not strictly a type of gift, Stridhan refers to property owned exclusively by a woman. It often included gifts received by a woman during her marriage ceremonies or from her relatives. Her power to deal with Stridhan was generally absolute.

4. Gifts to Daughters at Marriage: Property or movable assets given to a daughter at the time of her marriage were considered her exclusive property (often part of her Stridhan) and were seen as fulfilling a natural or moral obligation of the father.

In modern law, the classification of gifts is less about these traditional categories and more about the nature of the property (movable or immovable) and the capacity of the donor to gift that property, especially when it comes to joint family property.

Restrictions on Gifts

The power of a Hindu to make a gift is not always absolute and depends on the nature of the property being gifted (separate or joint family property) and the status of the donor within the family (individual owner or Karta). These restrictions are primarily found in the principles of Hindu Law relating to joint family property, rather than in the general law of gifts under the Transfer of Property Act, 1882.

Gifts of Movable and Immovable Property

The restrictions on gifting property under Hindu Law are primarily related to Joint Family Property, particularly coparcenary property under Mitakshara law. There is generally no restriction on a Hindu gifting their separate property, whether movable or immovable, provided they are competent to contract and the gift complies with the requirements of the Transfer of Property Act, 1882 (e.g., registered instrument for immovable property). A person has absolute power to dispose of their separate property by gift during their lifetime or by will.

Restrictions arise when dealing with Joint Family Property:

1. Gift of Undivided Interest in Coparcenary Property (Mitakshara):

By a Coparcener: Traditionally, a coparcener in a Mitakshara family could not make a gift of his undivided interest in the coparcenary property during his lifetime. This was because his interest was not defined until partition, and it would pass by survivorship upon his death. A gift would defeat the rights of other coparceners by survivorship. This rule was strictly enforced.
Impact of Hindu Succession Act, 1956 and 2005 Amendment: While the 2005 amendment gives daughters same rights as sons, the restriction on gifting the undivided interest during lifetime generally continues. However, Section 30 of the Hindu Succession Act allows a Hindu coparcener to dispose of his or her interest in coparcenary property by will. This means a coparcener can bequeath their interest upon death, but they generally cannot gift it during their lifetime.

2. Gift of Whole or Major Portion of Joint Family Property (Mitakshara):

By the Karta: The Karta's power to gift joint family property is very limited. He cannot gift the whole or even a substantial portion of the joint family movable or immovable property to strangers or even to family members (except for specific purposes) without the consent of all adult coparceners.
Permitted Gifts by Karta: The Karta can make gifts of a small portion of movable property for purposes like religious and charitable purposes, or presents to female members on auspicious occasions (like marriage), provided it is within reasonable limits considering the family's overall wealth.
The Karta generally cannot gift immovable joint family property, except for indispensable acts of duty (e.g., dedicating a small portion for a family temple) or possibly a small portion as gifts to daughters at the time of marriage (kanyadan), but this power is very limited and subject to the gift being reasonable in proportion to the total property and family circumstances.

3. Gift by Father of Self-Acquired Property: A father under Mitakshara law has absolute power over his self-acquired property and can gift it to anyone (son, daughter, stranger) as he pleases.

4. Under Dayabhaga Law: Under Dayabhaga law, the father is the absolute owner of his property (both ancestral and self-acquired) during his lifetime. Therefore, he has the absolute power to gift any of his property, movable or immovable, to anyone, without restrictions related to sons' rights by birth.

In summary, the power to gift is relatively free for separate property and property under Dayabhaga law. The main restrictions apply to the alienation by gift of coparcenary property under Mitakshara law by individual coparceners or by the Karta, which is either prohibited or severely limited to prevent depletion of the joint family estate without necessity or consent.

Example 1. Mr. Anil is a coparcener in a Mitakshara Joint Hindu Family along with his father and two brothers. The family owns a large ancestral house and some agricultural land. Mr. Anil wants to gift his undivided interest in the ancestral property to his friend, Mr. Gopal.

Answer:

Under Mitakshara law (both traditional and as largely modified by HSA), a coparcener cannot gift his undivided interest in the coparcenary property during his lifetime. This is not a valid gift. Mr. Anil's undivided interest would either pass by survivorship (in limited cases post-HSA) or by succession (in cases involving Class I heirs post-HSA) upon his death, but he cannot make a gratuitous transfer of that interest by way of gift during his lifetime. He could, however, potentially sell his interest for value in certain Mitakshara sub-schools, but not gift it.

Example 2. Mr. Varma, the Karta of a Mitakshara Joint Hindu Family, decides to gift a significant portion of the ancestral agricultural land to a charitable trust without the consent of his adult sons and daughters (coparceners).

Answer:

Mr. Varma, as Karta, has very limited power to gift immovable joint family property. He cannot gift a significant portion of ancestral agricultural land, even for charitable purposes, without the consent of all adult coparceners, unless it falls within the very narrow exception of dedicating a small portion for indispensable religious duties (which is usually a much smaller scale). Gifting a significant portion to a charitable trust is generally not considered a valid alienation by the Karta. The gift would be voidable at the instance of the coparceners, who could challenge it in court and seek to have the transaction set aside.

Testamentary Succession under Hindu Law

Right to Make a Will (Testamentary Succession)

Testamentary Succession refers to the devolution of property according to the terms of a valid Will made by a deceased person (the testator). A will is a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. The power to make a will is a significant right that allows an individual to dispose of their property according to their wishes, overriding the rules of intestate succession (which apply when a person dies without a valid will).

Under traditional Hindu Law, the concept of making a will for the disposition of property was not as developed or universally accepted as in Western legal systems. While pious dispositions and deathbed gifts were recognised in some contexts, the idea of bequeathing property freely by will, especially joint family property, was limited by the principles of survivorship and the rights of coparceners or heirs under intestacy.

However, the power of Hindus to make wills gradually evolved, particularly through judicial decisions influenced by English law during the British period, and was later codified by statute. The primary law governing wills in India, including those made by Hindus, is the Indian Succession Act, 1925.

The Hindu Succession Act, 1956 (HSA) also implicitly recognises the power of testamentary succession by Hindus. Section 4 of HSA states that any text, rule, or interpretation of Hindu law or any custom inconsistent with the provisions of the Act shall cease to have effect. This includes the rules of devolution of property by survivorship or inheritance laid down in the Act itself are subject to the testator's power to make a will. Furthermore, Section 30 of HSA explicitly deals with the testamentary disposition of property by a Hindu, including their interest in a Mitakshara coparcenary property.

Thus, under modern Hindu Law, a Hindu has the right to dispose of their property by will, subject to certain restrictions primarily concerning joint family property.

Competency of Testator

For a will to be valid, the person making the will (the testator) must be legally competent to do so. The requirements for the competency of a testator under the Indian Succession Act, 1925 (which applies to wills made by Hindus) are:

1. Age of Majority: The testator must have attained the age of majority. As per the Indian Majority Act, 1875, the age of majority in India is generally 18 years. If a guardian has been appointed by a court, the age of majority is 21 years. A minor is not competent to make a will.

2. Sound Disposing Mind: The testator must be of sound mind at the time of making the will. A person is considered to be of sound mind if they understand the nature of the act of making a will, the extent of the property they are disposing of, and the persons who are the natural objects of their bounty (i.e., their close relatives or potential beneficiaries). The testator must be free from any delusion that affects their understanding of these matters. Temporary unsoundness of mind (e.g., due to intoxication, illness, or delirium) at the moment of execution would invalidate the will. A person who is ordinarily insane may make a will during a lucid interval.

3. Voluntary Act: The will must be made voluntarily and freely, without being influenced by coercion, undue influence, or fraud. If the will is shown to have been obtained by these means, it is not valid.

A Hindu who meets these conditions is competent to make a will to dispose of their property, subject to the legal restrictions on the type of property that can be bequeathed.

Example 1. Mr. Verma, aged 75, is suffering from a severe illness that sometimes causes him to be delirious. However, during periods when his mind is clear and he fully understands his actions, he decides to make a will leaving his self-acquired property to his children. He instructs his lawyer and executes the will during one of these lucid intervals, fulfilling all legal formalities.

Answer:

Despite his illness and periods of delirium, Mr. Verma is competent to make a will if he does so during a lucid interval when he is of sound disposing mind. If it can be proven that at the moment he executed the will, he fully understood the nature of the will, the property he was disposing of, and his beneficiaries, and was acting voluntarily, the will would be considered valid. The fact that he might be unsound at other times does not automatically invalidate a will made when he was compos mentis (of sound mind).

Nature and Validity of Wills

A Will is a legal document that speaks from the grave, taking effect only upon the death of the testator. Its nature is revocable, meaning the testator can change or revoke the will at any time during their lifetime. The validity of a will is determined by both the competence of the testator and the proper execution of the will according to legal requirements.

Formal Requirements for a Valid Will

The formal requirements for the execution of a will by a Hindu are governed by Sections 63 and 64 of the Indian Succession Act, 1925:

1. Writing: The will must be in writing. It can be handwritten, typed, or printed.

2. Signature of Testator: The will must be signed by the testator or by some other person in his presence and by his direction.

3. Attestation: The will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, or has seen some other person sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator.

It is not necessary that more than one witness be present at the same time during the attestation. A witness does not need to know the contents of the will, only that they are attesting the testator's signature. The witnesses must sign in the testator's presence, though the testator does not necessarily have to sign in the witnesses' presence (acknowledgment is sufficient), as long as the witnesses sign in the testator's presence.

Strict compliance with these attestation requirements is crucial for the validity of a will. A will that is not properly attested by two witnesses is generally invalid.

Probate and Letters of Administration

Probate is a certificate granted by a court of competent jurisdiction certifying the validity of a will and granting administration of the testator's estate to the executor appointed by the will. It is essentially the judicial proof of a will.

Letters of Administration are granted by a court when a person dies intestate (without a will) or when the deceased made a will but did not appoint an executor, or the appointed executor is unable or unwilling to act. Letters of Administration grant authority to the person named (administrator) to administer the deceased's estate according to the rules of intestate succession or the terms of the will (where no executor is appointed).

In India, the requirement for obtaining probate is not universal for all wills made by Hindus:

Probate is compulsory only for wills made by Hindus within the territories of West Bengal, the Presidency towns of Chennai, Mumbai, and Kolkata (formerly Madras, Bombay, and Calcutta), and for immovable property situated within these territories, regardless of where the will was made. This is mandated by Section 213 read with Section 57 of the Indian Succession Act, 1925.
For wills made by Hindus outside these specified territories, or for immovable property situated outside these territories, obtaining probate is generally optional. The will can be proved in court during litigation by calling one of the attesting witnesses, without necessarily obtaining a formal probate beforehand.

While probate is often not legally mandatory for all Hindu wills, obtaining it is advisable as it conclusively establishes the validity of the will against the world and simplifies the administration and transfer of the testator's property.

Proceedings for probate or letters of administration are conducted in the appropriate civil court (District Court or High Court with testamentary jurisdiction).

Example 1. Mr. Iyer, residing in Bengaluru, makes a will leaving his immovable property located in Chennai and his bank deposits in Bengaluru to his children. He signs the will and gets it attested by one neighbour. After his death, his children want to claim the property and bank deposits based on the will.

Answer:

Mr. Iyer's will might face challenges regarding its validity because it was attested by only one witness. Section 63 of the Indian Succession Act, 1925 requires attestation by two or more witnesses. If only one witness attested, the will is formally invalid and cannot be given effect. Furthermore, since the will pertains to immovable property situated in Chennai (a former Presidency town), obtaining probate of the will from a court in Chennai or Bengaluru (if the testator was residing there) would be compulsory to establish its validity and claim the property in Chennai. Even for the bank deposits, while probate might not be legally mandatory, the bank may require it for transferring funds. The lack of proper attestation is a fatal flaw regardless of the requirement for probate.

Restrictions on Wills

While a Hindu generally has the power to dispose of their property by will, this power is not absolute. There are certain restrictions, primarily concerning the nature of the property being bequeathed and certain obligations that must be met.

Restrictions related to Property

1. Coparcenary Property (Mitakshara Law): Historically, a coparcener in a Mitakshara Joint Hindu Family could not dispose of their undivided interest in the coparcenary property by will. This was because the property would devolve by survivorship upon their death, leaving nothing for the will to operate upon. However, the Hindu Succession Act, 1956 changed this position. Section 30 of the Act now specifically provides that a Hindu can dispose of by will or other testamentary disposition any property which is capable of being disposed of by him or her by way of nomination or other testamentary disposition in accordance with the provisions of the Indian Succession Act, 1925, or any interest in a Mitakshara coparcenary property.

This means that under modern Hindu Law, a Mitakshara coparcener (including a daughter since the 2005 amendment) can make a will bequeathing his or her undivided interest in the coparcenary property. The bequest takes effect upon death, and the legatee (beneficiary) will receive that share as if it had been partitioned immediately before the testator's death. Section 6(3) of HSA further clarifies this by stating that the interest of a deceased Mitakshara coparcener shall devolve by testamentary or intestate succession under the Act, and not by survivorship, if the deceased has left behind any Class I heir or male relative through a Class I female heir.

So, while historically restricted, the power to will away coparcenary interest is now expressly permitted by statute.

2. Property Not Owned by Testator: A person can only dispose of property by will that they legally own at the time of their death. They cannot make a will disposing of property that belongs to someone else or property in which they have no transferable interest. For example, a member of a joint family cannot make a will disposing of the entire joint family property or the share of another coparcener.

3. Gifts to Unborn Persons: The rules regarding bequests to unborn persons under the Indian Succession Act, 1925 (which apply to Hindus) must be followed. Generally, a bequest can be made to a person who is not in existence at the time of the testator's death, provided it is preceded by a prior interest created in the same will, and the bequest is intended to take effect upon the happening of certain events.

Restrictions related to Obligations

1. Maintenance Obligations: While a testator can bequeath their property by will, the property in the hands of the legatee (beneficiary) may still be subject to the maintenance obligations of the deceased testator towards their dependents who are entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956 (HAMA). Section 22 of HAMA states that heirs (which includes legatees under a will) are liable to maintain the dependents of the deceased out of the estate inherited by them. This means the beneficiaries under a will may have a legal obligation to provide maintenance to certain family members of the testator, even if the will does not explicitly mention it.

2. Pious Obligation (for Antecedent Debts): In a Mitakshara family, the shares of sons/daughters in ancestral property obtained upon partition or deemed partition (for succession purposes) are subject to the doctrine of pious obligation to pay the antecedent debts of their father, grandfather, or great-grandfather (if not for illegal/immoral purposes). While the Hindu Succession Act has impacted this doctrine, property received through will (especially ancestral property interest) might still be subject to this liability to the extent the doctrine is applicable. Creditors can potentially pursue the property bequeathed to discharge valid debts of the deceased.

In essence, a will made by a Hindu must comply with the formalities of the Indian Succession Act, 1925, and the testator can only dispose of property they legally own, including their interest in Mitakshara coparcenary property. The disposition by will is subject to certain family law obligations like maintenance and potentially antecedent debts, ensuring that the testator cannot use a will to completely evade these fundamental responsibilities.

Example 1 Revisited. Mr. Verma, a coparcener in a Mitakshara HUF with ancestral property, makes a will leaving his undivided interest in the ancestral property to his daughter, Ms. Aditi. He also owns self-acquired property, which he leaves to his son, Mr. Bharat. Mr. Verma passes away, survived by his wife, Ms. Chitra, who is entitled to maintenance from his estate.

Answer:

Under Section 30 of the Hindu Succession Act, 1956, Mr. Verma has the power to bequeath his undivided interest in the ancestral property by will. Thus, his bequest of his interest in ancestral property to Ms. Aditi is valid. His bequest of his self-acquired property to Mr. Bharat is also valid, as he has full power over his self-acquired property. Upon Mr. Verma's death, Ms. Aditi will receive his share in the ancestral property (calculated as if a partition occurred just before his death) according to the will, and Mr. Bharat will receive the self-acquired property according to the will.

However, Ms. Chitra, as the widow of Mr. Verma, is a dependent entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956 (Section 21(iii)). Section 22 of HAMA states that the heirs of a deceased Hindu (which include legatees under a will) are liable to maintain the dependents out of the estate inherited or received under the will. Therefore, the properties received by Ms. Aditi and Mr. Bharat under Mr. Verma's will will be subject to Ms. Chitra's claim for maintenance. She can seek maintenance from the estate left by Mr. Verma, now in the hands of Ms. Aditi and Mr. Bharat, according to their respective portions.