LAW 203 (II) - Hindu

Law
Gift & Will
Course Instructor – Dr. Nabaat Tasnima Mahbub
 Gift – Concept & Classification
• Gift consists in the relinquishment of one’s own right in property
without consideration and the creation of right of another.
• There are two factors involved in a gift –
• the extinction of the donor’s right
• the creation of the donee’s right
• Four Classes of Gift
• Deya i.e. that which should be given
• Adeya i.e. what should not be given
• Datta i.e. given or valid gift
• Adatta i.e. ungiven or invalid gift
 Gift – Concept & Classification
• So, Hindu law divides gifts into four classes –
• (1) Proper gift – A proper gift consists of the donation of the donor’s own
property, which is not prohibited. The authority to make a gift depends upon
the donor’s power of disposal over the subject matter of the gift.
• (2) Improper gift – Subject of improper gifts are either what are not the
donor’s own or exclusive property or what is forbidden to be given away.
• (3) Valid gift – A valid gift is defined to be what has been made by a person of
sound mind.
• (4) Invalid gift – An invalid gift is defined to be that which is not liable to
resumption.
 Gift
Distinction between the Dayabhaga and the Mitakshara
school with respect to the requisite of a valid gift

•According to Mitakshara law acceptance of the gift

is necessary and there can be no complete gift
without the donee’s consent.
•According to Dayabhaga school, the donor’s act of
giving alone completes the gift.
 Gift - Form of Making Gift
• A gift under pure Hindu law need not be in writing.
• But a gift is not valid unless it is accompanied by delivery of
possession of the subject of the gift from the donor to the donee.
• For the purpose of making 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.
• For the purpose of making gift of movable property, the transfer
may be effected either by a registered instrument signed as
aforesaid or by delivery.
• It may be noted that acceptance of the gift is still essential to
complete a gift.
 Gift
What property may be disposed of by gift
• A Hindu, whether governed by the Mitakshara or the Dayabhaga
school, may dispose of by gift his separate or self-acquired property,
subject in certain cases to the claims for 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 those who are entitled to be
maintained by him.
• A father under the Dayabhaga law may by gift dispose of the whole of his
property, whether ancestral or self-acquired, subject to the claims of those
who are entitled to be maintained by him.
• A female may dispose of her stridhan by gift.
• A widow may in certain cases by gift dispose of a small portion of the
property inherited by her from her husband.
 Gift in favour of unborn persons
• Under Shastric Hindu law, a gift could not be made in favour of a person who was
not in existence at the date of gift.
• So the donee must be in existence at the date of gift.
• The Hindu law as interpreted in the case of Tagore vs. Tagore (1872) 9 BLR, 377
did not permit a gift in favour of an unborn person at the date of gift. But the
decision as held in the Tagore case has been altered by the following two Acts –
• The Hindu Transfer and Bequest Act, 1914
• The Hindu Disposition of Property Act, 1916
• Prior to the aforesaid Acts, a Hindu could not make a valid gift in favour of
unborn persons.
• But this rule of Hindu law is now abrogated and subject to the provisions of the
Transfer of Property Act, 1882, 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.
 Gift - Revocation of Gift

•A gift once completed is binding upon the donor and

it cannot be revoked by him, unless it was obtained by
fraud or undue influence.
 Will
• Hindu law contains no provision for will.
• Will was not expressly mentioned in the documents of Sanskrit writers and
the idea of will was unknown to Hindu Shastric law.
• But it cannot be said that wills were wholly unknown to Hindu law.
• The so-called early wills were really the deed of gifts or settlement made by
the Hindus before their death.
• So will among the Hindus were sought to be explained as development of
gift and the conception of a gift gave rise to the conception of will.
• It is significant to point out that it was in the then Bengal that the
testamentary power of a Hindu was first recognized and settled.
 Will
• The first important judicial pronouncement was in 1772 what is
popularly known as Nudden’s case wherein it was held that the will of
the testator was to be perfectly valid according to Hindu law.
• The right of Hindu governed by the Dayabhaga law to bequeath
ancestral property to the exclusion of son was affirmatively laid down
in the case of Gopee Raja Krishna and Rentoonoo vs. Ramgipal.
• In the case of Janokey Das vs. Brindaban Das, their Lordships of Privy
Council held that throughout Bengal a man who is the absolute
owner of the property may now dispose it of by will as he pleases.
• The same view has been affirmed by a number of decisions of the
Privy Council ranging from 1846 to 1872.
 Will
•It is noteworthy to point out that wills have come into vogue
after the decision of Privy Council in the case of Tagore vs.
Tagore.
•Practically, testamentary disposition of Hindus appears to be
the extension of gift.
•The people derive their conception of bequest from
donation.
•Gift and will appear to be successive conceptions, the former
leading to the latter.
 Will - Concept
•Will means a document laying down rules of devolution
without present disposition.
•The term “will” is defined in section 2(h) of the Succession
Act, 1925 as the
•“legal declaration of the intention of a testator with
respect to his property which he desires to be carried into
effect after death”.
 Will - Essential Elements
• From the wording of the definition the following essential elements
of a will may be derived -
• It must be legal.
• It must relate to disposition of property.
• It must relate to the testator’s property or to the property over which he had
the disposing power.
• It must be disposed of in such a manner so as to take effect after the
testator’s death and
• It must be revocable at the testator’s pleasure.
• A sure test to determine whether a particular document is a will or
not is to see whether the disposition is to take effect during the
lifetime of the person or after his death.
 Will - Persons capable of making
will
•Every Hindu
•who is of sound mind and
•not a minor
may dispose of his property by will.
Will - What property may be disposed of by
gift
• It is a firmly established rule that a Hindu cannot by will bequeath
property which he could not have alienated by gift.
• A Hindu, whether governed by the Mitakshara or the Dayabhaga
school, may dispose of his separate or self-acquired property by will,
subject in certain cases to the claims for maintenance of those whom
he is legally bound to maintain –
• A coparcener under the Dayabhaga law may dispose of his coparcenary
interest by will subject to the claims of those who are entitled to be
maintained by him.
Will - What property may be disposed of by
will
•A father under the Dayabhaga law may by will dispose
of the whole of his property, whether ancestral or
self-acquired, subject to the claims of those who are
entitled to be maintained by him.
•A female may dispose of her stridhan by will.
•An owner of an impartible estate can dispose of it by
will in the absence of a special custom prohibiting
alienation.
 Form of Will
• It is noteworthy to point out that among the Hindus a will could be
made orally and no technical words were necessary to make a will.
• The Hindu Wills Act of 1870 was first enacted which required Hindu
wills to be in writing.
• Before the said Act, no Hindu will was required to be in writing and a
will could be oral or written and if it was in writing, it need not be
attested or registered.
• But under the Succession Act, 1925 every will must be in writing by
the testator and attested by at least two witnesses.
 Revocation of Will
• Revocation of will can be brought in the following ways -
• By operation of law.
• By writing and this can be done in one of the two ways:
• by another will duly executed
• by some other writing containing a declaration of an intention to revoke.
• Without writing, by destruction –
• by burning or
• by otherwise destroying the will
• So, revocation by act of testator must be done in one of the ways as indicated
above.
 Will/Bequest to Unborn Person
• Rule apart from Statute
• A person capable of taking under a will must be in existence at the death of the
testator.
• A bequest to a person not in existence at the testator’s death is invalid.
• A child in the womb and a son adopted by a widow after the death of her husband
are in contemplation of law in existence at the death of the testator. This rule was
laid down by the Judicial Committee in the case of Tagore vs. Tagore (1872).
• Rule altered by Statute
• The rule of Hindu law that a bequest cannot be made in favour of a person who was
not born at the date of the testator’s death has been altered by the following Acts
namely:
• The Hindu Transfer & Bequests Act, 1914.
• The Hindu Disposition of Property Act, 1916.