GIFT
Explain the concept of Gift under Hindu Law and discuss the power of Karta to make a gift of an ancestral immovable property.
Article 300A of the Indian Constitution provides a constitutional right i.e. right to have a property. According to this Article, every person has a right to own a property. Whenever a person owns a property, he not only acquires the ownership but along with ownership, he acquires various rights like right of possession, right of alienation. So, if a person owns any property, he also acquires the right to alienate that property by way of gift, sale or will etc.
A “Gift” is a transfer of property whether movable or immovable by one person to another person without any consideration. If a person gives a property to another person as a gift, the another person does not pay any money to the former person because if he pays the price then that transaction will be considered a “Sale.” This is the difference between gift and sale. A person who gives a gift is known as “Donor” whereas the person who receives the gift is known as “Donee”.
If a person acquires any separate property that is if he acquires any property with his own efforts and funds, in such a case, he has right to make a gift of that property and he can do so even without the consent of any other person. According to Mitakshara law school, if any coparcener acquires any property without the aid or assistance of Joint family property, that property will be considered his separate property and he can make a gift of that property without the consent of other coparceners because no coparcener has any interest in that property.
Now, it is clear that a coparcener can make a gift of his separate property even without the consent of other coparceners.
But the main question which arises here is that, “Whether can a coparcener make a gift of a Joint family property.”
According to Mitakshara law school, Joint Hindu family includes all the members whether male or female and every member of joint Hindu family has an interest in joint family property. Moreover, they acquire an interest in property by birth. So, it can be said that every coparcener is a co- owner with respect to same joint family property. Because of Joint- Ownership and Joint- Possession, no coparcener has a right to make a gift of joint family property without the consent of other coparceners.
According to Mitakshara law school, a coparcener has a right to make a gift of his separate property but if he wants to gift a joint family property then he has to take consent from all the coparceners. The main objective behind this is to protect the interest of coparceners by preventing the entry of a stranger into a joint family. Its main purpose is to maintain the jointness of ownership and possession of a joint family property.
In the leading case of T. Venkatasubramma vs Rattamma (AIR 1987 SC 1775), The Supreme Court held that, “An ordinary coparcener cannot make a valid gift of undivided share unless it is with the consent of all the coparceners.”
Now, it is clear that an ordinary coparcener has no right to make a gift of joint family property without the consent of other coparceners.
But, the next question which arises here is that, “Whether can a Karta make a gift of joint family property.”
According to Mitakshara law school, Karta has unlimited powers and he manages all the affairs of Joint Hindu family as well as Joint Family Property. He has power to alienate joint family property in case of legal necessity, for the benefit of estate or for performing socio- religious activity even without the consent of other coparceners. He has power to make a gift of love and affection of a small portion of movable Joint family property. He can make a gift to his wife, daughter, son-in-law, son or to any other near relation. He can make a valid gift only if he fulfil two conditions:-1. It should be a gift of love and affection. 2. It should be of a small portion of movable joint family property. According to Mitakshara law school, he can not make a gift of immovable joint family property.
In a leading case of Perumalakka vs. Balakrishnan (AIR 1967 SC 569), The Supreme Court held that, “Karta can donate an immovable property only for ‘pious’ purpose. According to Mitakshara law school, pious purpose includes religious and charitable purposes but does not include gift of love and affection. But, gift within reasonable limit can be made for pious purposes and the term “pious” purpose has been extended to cases where Karta makes a gift of an immovable joint family property within a reasonable limit to his daughter. So, A Karta can make a gift of immovable joint family property within reasonable limit to his daughter only even if it is neither a religious act nor a charitable act but it is still included in the term of pious purpose.
In a leading case of R. Kuppayee vs Raja Gaunder [(2004) 1 SCC 295], The Supreme Court held that, “A Karta can make a gift of ancestral immovable property to his daughter within reasonable limits. He cam make such a gift at the time of her marriage or even long after her marriage.
Hence, it can be said that an ordinary coparcener has no power to make a gift of joint family property without the consent of other coparceners but Karta has power to make a gift of love and affection of movable joint family property and moreover Karta has power also to make a gift of immovable joint family property within reasonable limit to his daughter only.
