C.N.Leelavathi vs M. Narayanappa and others. Regular First Appeal 1908/2005 decided on 9 December 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356472/1/RFA1905-05-09-12-2020.pdf
Relevant paragraphs: Early law of gifts: – The early law of gifts is stated by Sanskrit writers somewhat curiously under the title “Resumption of gifts”, one of the eighteen titles of law. Narada says, “An anvahita deposit, yachita, a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring, and what has been promised to another man; these have been declared by the spiritual guides to be inalienable by one in the worst plight even. What is left (of the property) after the expense of maintaining the family has been defrayed, may be given. But by giving away anything besides, a householder will incur censure”. According to Brihaspati, “Self- acquired property may be given away at pleasure by its owner”. In other countries, gifts try to clothe themselves with the semblance of a sale. Under Hindu Law, sales claimed protection by assuming the appearance of a gift. The Mitakshara says: “Since donation is praised, if sale must be made, it should be conducted, for the transfer of immovable property, in the form of a gift, delivering with it gold and water (to ratify the donation). Narada mentions sixteen kinds of invalid gifts which embrace a variety of circumstances such as want of capacity of the donor, either permanent or temporary, absence of real intention to make a gift, influence of fear, fraud, misrepresentation, or mistake, many of which would invalidate a gift in modern law.
It would be relevant to observe where property is absolutely at the disposal of its owner, he may give it away as freely as he may sell or mortgage it, subject to a certain extent to the claims of those who are entitled to be maintained by him. A Hindu whether governed by the Mitakshara or the Dayabhaga, can dispose of his separate or self-acquired property. So too, a woman can make a gift of her stridhana. A coparcener in a joint family governed by the Mitakshara law cannot make a gift of his coparcenary interest even in State where he can alienate it for value, except after a division in status. Where the property is not absolutely at the disposal of a person, a transaction can only be supported on the ground of necessity and as a general rule, a gift of it could never be valid. Exceptions, however, are recognized by Hindu law where gifts can be made either for pious, religious or charitable purposes or on occassions, when, according to the common notions of Hindu, gifts are usually made. This exceptional power can only be exercised properly and within reasonable limits.
The modern law of gifts consists in part of case law and in part of the provisions of Chapters II and VII of the Transfer of Property Act, 1882. Even in the areas where the provisions of the Transfer of Property Act are not applicable, its principles apart from the technical rules are applied as rules of justice and equity.
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary is void. It is not necessary to refer to all the decisions. Instead, I may refer to the following statement of law in Mayne’s Hindu Law, sixteenth edition., para 406: It is now equally well settled in all the states that a gift or devise by a coparcener in a Mithakshara family of his undivided interest is wholly invalid… A coparcener cannot make a gift of his undivided interest in the family property, movable, either to a stranger or to a relative except for purposes warranted by special texts.… According to Mithakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his undivided interest with the consent of other coparceners.
An individual member of the Joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
I am of the opinion that the law is thus well settled that the manager has not absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. The scope of the power cannot be extended on the basis of the wide interpretation given to the words “pious purposes” in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family out of love and affection by the manager of the family is void.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 