Report No. 70
Gifts: General Observations
The next Chapter in the Act, which deals with gifts, is a short one, but has raised several interesting problems. Many of these problems could, with respect, have been avoided if courts, and counsel arguing before courts, had paid more attention to basic principles1 underlying the Act and to some of the important express provisions of the Act. Some of the problems are due to defective or incomplete drafting, or to failure to bring upto date some of the sections in the light of the amendment made in 1929 in regard to the transfer of actionable claims.
1. Para. 106.2, infra.
106.2. Basic principles-Idol.-
To take an example of a controversy which is due to an inadvertent disregard of a basic principle, let us refer to the debate that went for a long time as to the precise status of a gift to a Hindu idol. It is a basic principle that the Act deals with transfer to a "living person"1 If this principle is kept in the forefront not much effort is required to come to the conclusion that the definition in section 122 can not apply to a dedication to an idol as such.2
1. Section 5.
2. See further, discussion as to section 122, infra.
As regards incomplete expression in drafting, we may note that while the definition of 'gift' in section 122, is, in terms, wide enough to cover gift of all types of property, it is the next chapter-beginning with section 130-that is really applicable to gifts (as well as other kinds of transfer) of actionable claims. Section 130, after its amendment in 1929, is explicit on this point. However, when in 1929, section 130 was widened on the point, there was no consequential amendment in section 123 so as to exclude gifts of actionable claims from the scope of section 123 (formalities of gifts).
We are pointing out this omission not in any over-critical spirit, but in order to indicate how some High Courts, with respect, have failed to notice that any question relating to the formalities for effectuating a gift of an actionable claim (e.g. money with a bank), should be decided with reference to section 130, and not with reference to section 123. We shall revert to this aspect again1, when we consider section 123.
1. See discussion of as to section 123, infra
106.4. Savings in section 129.-
Some questions of difficulty have arisen out of the savings contained in section 129, to the effect that nothing in this chapter shall be deemed to affect any rules of Mohammedan Law. This part of section 129 has remained unchanged ever since the Act was passed-we are not concerned with the amendment relating to Hindus that was made in 1929. Since the Act was passed, two important developments have taken place: one is the passing of the Muslim Personal Law (Shariat) Act in 1937, and the other is the constitutional provision in Article 14. We need not, at this stage, go into the details of the relative controversies. But we are mentioning this point in order to indicate the scope of the discussion that will ensurer1 and the nature of the controversy that it will embrace.
1. See discussion as to section 129, infra.
106.5. Section 122.-
So much by way of introduction. The definition of gift is contained in section 122 which reads as follows:-
"122. '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. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void."
106.6. Section 123, first paragraph-idols.-
The first paragraph of the section incorporates the principle that a gift is gratuitous transfer of property from one person to another.1 First and foremost, it must be a transfer. And the transfer must be to a living person-section 5. This itself is enough to exclude "dedication" to an idol from the scope of the definition of gift in the section.
1. Gifts are always gratuitous; Grants are upon some consideration or equivalent, 2 Blackstone's Commentaries 440.