NOTES FOR ARGUMENT

TOPIC: - Validity of gift deed- property given as gift by grandfather to grandson does not come
under the purview of joint family property- grandfather to grandson gift deed is valid.

Applicable laws:-

1. Hindu Succession Act, 1956 (Sec. 30)

2. Transfer of Property Act, 1882 (Sec. 122- Sec.127)
3. S

Books for Interpretation:-

1. Halsbury Laws of England; Vol 5(2), 4th edition Para 48 & Para 642-647

Case laws referred:-

1. K. Balakrishnan v. K. Kamalam (AIR 2004 S.C. 1257) – PDF attachment sent along with email
2. Firm of Ganeshdas Bhiwaraj v Suryabhan (1977) XIIIth Nag.L.R.18
3. Munni Kunwar v. Madan Gopal (1916) (XXXVIII) ILR All 62 at 69
4. Appan Patra v Srinivasa (1917) 40 Mad 1122
5. Jugal Kishore Jai Prakash v CIT – (1971)79 ITR 598
6. Krishna Iyer v Lakshmi Ammal- AIR 1950 TC 73
7. Basudeo Ramchand v. Pran Lal Jaichand 1974 (2) SCR (Hindi) 1844
8. T.V.Subbamma v. T.Rattamma – AIR 1987 SC
9. Munnilal Mahto v Chandreshar Mahto – AIR 2007 Pat 66

CORE POINTS:-

A. If a gift is “complete” and “valid”, then it is irrevocable.

B. Any Hindu may dispose of any property (which is capable of being disposed of by him) by
will or by “other testamentary disposition” in accordance with Indian Succession Act or
“any” other law.
C. A minor child is capable of accepting a non-onerous gift through a guardian; and if a parent or
grandparent is giving a gift to a minor child or grandchild then it is presumed that the gift is
valid, provided it is complete.

QUESTIONS FOR DISCUSSION: -

I. Whether the gift is valid in the current case?

II. How does a gift become complete?
III. Can a grandfather dispose of a coparcenary property as a gift?
IV. Can a legally valid gift be declared void?
V. Can the act of completion of an offer and acceptance be defeated due to the “description
of the immovable property” or “coparcenary rights”?
VI. What is the difference between the “testamentary succession” and the “succession by
survivorship”? Which one will prevail more in the event of dispute?
DISCUSSION:-

I. Whether the gift is valid in the current case?

A “Gift” is discussed under sections 122 to 129 of the Transfer of Property Act, 1882.
A “Gift” is transfer inter vivos (between living bodies) of an existing property
(movable or immovable), without consideration by a donor (one who gives gift) to a
donee (one who receives gift) and accepted by the donee or on behalf of the donee.
[sec.122 of TP Act]
In the instant case,
- Is the gift an onerous gift or non-onerous gift?
- Did the gransfather (donor) give the gift to the minor child (donee) with a guardian
to represent him and the gift deed was executed after due acceptance and recorded
likewise?
- Did the minor child, upon attaining majority, repudiate or express non-acceptance in
accepting the gift? Upon such event, was the expression recorded or mentioned by
grandfather anywhere?
- Was any cancellation deed of gift deed or revocation deed (expression any non-
acceptance) executed?

II. How does a gift become complete?

-Voluntary offer of gift by donor while donor is capable of giving gift (notes)
-Without consideration (notes)
-Acceptance of gift by Donee while the donor is alive (i.e. acceptance to be made
during the lifetime of donor) (notes)
-Deed must be registered if it‟s regarding immovable property (notes)
-Deed can be registered or by delivery of possession with regard to the movable
property(notes)
On completion of all the above conditions, A gift is complete. Any Complete Gift
is valid and irrevocable.

With regard to “acceptance”,

Under Hindu Law, „acceptance‟ is only necessary and delivery of possession is only one of
modes of acceptance (Dharmo Das v. Nistarini Dasi- (1887) 4 Cal 446). The Transfer of
Property Act has superseded the rule of Hindu Law. Therefore the provisions under
sec(s) 122-129 will apply.
In the instant case,
As the grandfather has voluntarily given the gift and the minor child had accepted the gift
either express or implied through his guardian; and did not repudiate or cancel at any
time after; the deed is valid and the gift is valid & irrevocable.

[Any other evidence if any: - _________________________________________________________________

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 Now that gift, act of giving, act of acceptance and irrevocability of gift has been
established, the only question that arises is, whether the property given as gift has the capacity to
be given as gift and whether the grandfather had the capacity to gift it?

III. Capacity of a grandfather to gift- Can a grandfather dispose of a coparcenary

property as a gift?

In instant case,
- Is the gifted property a coparcenary property?
- Was the property a self-acquired property of grandfather?
If yes, then there is no question of ancestral property because, property at the
absolute disposal of owner can be gifted.

- Did he have a separate property?

A hindu governed by the mitakshara law has full powers of alienation over his
separate property (i.e. which is not held by him jointly with others) he can sell it,
mortgage it, gift it inter vivos or bequeath it by will.
If no, and if it was an ancestral property, then, did he take permission from other
coparceners before giving the property as gift; or, did he just give from his share?
In Appan Patra v Srinivasa (1917) 40 Mad 1122, it has been held that a gift can be made
with the “consent” of the other coparcener.
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- Did the grandfather buy it for the grandson?

If yes, did he buy with his own money or, with the money from a coparcenary
property? (Because, properties purchased with income from a coparcenary property
is a coparcenary property)
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If no, was it a share from ancestral property?

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The father‟s power to make gifts through affection within reasonable limits of ancestral
property has been fully recognized (Jugal Kishore Jai Prakash v CIT – (1971)79 ITR 598- speaks
about gift by Karta). In Krishna Iyer v Lakshmi Ammal- AIR 1950 TC 73- It has been held that
gifts of affection of immovable property can be made.

IV. Can a legally valid gift be declared void?

The following conditions can make the gift void:-
1. When it was not executed voluntarily
2. When gift deed of immovable property is not registered. (Any act of giving or
accepted gifts will be governed only by the Transfer of property Act; even if it deals
 with shares of a company, the TP Act will supersede the Company law. Basudeo
Ramchand v. Pran Lal Jaichand 1974 (2) SCR (Hindi) 1844.
3. If gift by a coparcener of his undivided share in coparcenery property without the
consent of all others is not valid; but, it will be Void and Unenforceable.
(T.V.Subbamma v. T.Rattamma – AIR 1987 SC 1775)
However, the gift of a share in coparcenary property after the preliminary decree of
partition is valid. This is so because, a decree of partition amounts to severance of
joint family- which is an end of coparcenary. The parties therefore will no longer be
coparceners. They will become “tenants-in-common in Joint-Possession” (Munnilal
Mahto v Chandreshar Mahto – AIR 2007 Pat 66).
4. Gift of future property is void.

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V. Can the act of completion of an offer and acceptance be defeated due to the
“description of the immovable property” or “coparcenary rights”?
The description of property  if clearly shows the independent ownership of
grandfather  then, the act of gifting becomes valid.
If the coparcenary rights exist over the property, and the grandfather has taken
permission of all coparceners before gifting the property, then the gift is valid. If in
absence of any such permission, the grandfather had only given his independent share as
gift, then the gift is valid.
If the grandfather gave his self-acquired property, or by a purchase from his self-
acquired property income, then the property in dispute does not get invited into the list
of property to be partitioned intestate.

VI. What is the difference between the “testamentary succession” and the “succession
by survivorship”? Which one will prevail more in the event of dispute?
Sec 30 of the Hindu Succession Act makes a gift deed that was executed after the
death of grandfather as a valid document to establish a testamentary succession of a
property through its execution.
In instant case, if the gift took effect after the death of the grandfather, and the
grandfather was capable of disposing off the property as a gift to his grandson and the
gift was complete, then, the property can be transferred to the grandson in accordance of
the contents of the document.