What is gift and what are the requisites of a valid gift under Hindu Law ? (d) Can a gift be made in favour of an unborn person ? What are the exceptions to this rule ?

Ans. (a) Section 122 of the Transfer of Property Act, 1882, defines gifts as follows : “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 donee, and accepted by or on behalf of the donee”. Under this 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. For movable property, the transfer may be effected eitlier by a registered instrument or by a delivery of possessi on. What is gift.—Gifl is defined by Mitakvhara to be the relinquishment of one’s own right in one’s property and the creation of the rights of another in the same property, the creation being complete on the acceptance of the gift only. According to the Dayabhaga, however, the donor’s act of giving alone completes the gift. Subject-matter of gift.—The following property may validly be disposed of by gift—(i) Separate or self-acquired property of a Hindu whether governed by mistakshara or Dayabhaga law (ii),Stridhana i.e., woman’s absolute property; (iii) Impartible property, unless prohibited by custom or the term of the tenure. (iv) Interest of a coparcener under Dayabhaga Law; (v) The whole of the ancestral property, by father under Dayabhaga Law; (vi) A small portion of the property inherited by a Hindu widow, may be gifted by her daughter or her son-in-law at the time of marriage; (vii) Movable property inherited by a widow governed by’ Alainikha Law. Requisites of valid gift.—A gift under pure Hindu Law need not be in writting. But the delivery of possession of the subject of gift from the donor to the donee is essential. But where from the nature of the case physical possession cannot be delivered, it is brought to validate a gift, if the donor has all he could to complete the gift so as to entitle donee to obtain possession. It may, however, be noted that the rule as laid down by Mitakshara regarding gift is applicable only where the Transfer of Property Act is not in force. So it is clear that the provision of the said Act have superseded the rule of Hindu Law fLallu Singh V Guru Narain, (1923) 45 All (FB)1. (b) Gift in favour of unborn person—General rule.—Under Hindu Law, a gft could not be made in favour of an unborn person who was not in existence at the date of the gift. (Tagore v. Tagore, 9 BLR 277). Exceptions.—But the above rule of pure Hindu Law has been altered by the following three enactments : 1. The Hindu Transfers and Bequests Act, 1914.—it applies only to transfers executed on or after the 14th February, 1914, or if executed earlier, intended to come into operation on or after that date, by Hindu domiciled in Madras State except the city of Madras. 2. The Hindu Disposition of Property Act, 1916.—It applies only to transfers executed on or after the 20th September, 1916, by a Hindu in any part of India except Madras State. 3. The Hindu Transfers and Bequests (City of Madras) Act, 1921.—The principles laid down in the Tagore’s case still hold good in places where these aforesaid Acts do not apply. Subject to the limitations and dispositions contained in Chapter II of The Transfer of Property Act, I 882,no gift is invalid by reason only that any person for whom it may have been made was not born at of the gift.”

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