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Report No. 70

106.7. Theory of Hindu law as to dedication.-

There is also another aspect to be considered in connection with dedication. The theory of ancient Hindu law is that a dedication is intended to benefit the public in whom the spirit of God is said to reside. It is to the universal soul which pervades all beings. The idol is not, in theory, the donee, though it is so reported for the sake of convenience. This is the reason why1 it has been held that the deity is immortal and a Hindu debutter will not fail even if the image be broken, stolen or lost. The dedication, as was held by Venkatarama Ayyar J.2 confers a spiritual benefit on the worshippers.

1. Mahant Ram Saroop Das Ji v. S.P. Sahi, AIR 1959 SC 951.

2. Deokinandan v. Murlidhar, AIR 1957 SC 133.

106.8. Chhandogya Upnishad.-

In the Chhandogya Upnishad,1 this is what is stated regarding the persons who benefit by a religious offering:

The following is a free rendering of the above:

"He who presents an oblation, has made an offering in all world in all beings, in all souls. As in the world hungry infants press round their mother, so do all beings await the holy oblations. They await the holy oblations."2

The usual religious formula pronounced by every Hindu male or female, on the occasion of any offering or feeding, is that it is made to God:

1. Chhandogya Upanishad, quoted in Ramalinga v. Sivachidambara, 1919 ILR 42 Mad 440 (442).

2. Ramalinga v. Sivachidambara, ILR 42 Mad 440 (442).

106.9. Meaning of "voluntarily".-

The word "voluntarily" in the section bears its ordinary popular meaning, denoting the exercise of an unfettered free Will.1 Perhaps, the idea is derived from Roman Law. Gift in Roman Law is an alienation "which is made without the law compelling you to do it"-quod nullo jure cogente concedttur? "They are completed when the giver has openly declared his intention whether in writing or not if no delivery took place, they should be fully and completely valid; the necessity of delivery should rest upon the giver."2

Some obscurity has been created as regards the exact scope of the expression "voluntarily". Of course, the expression is not used in the sense in which it was used in the Court of Chancery as a transaction without consideration.3 It would seem to indicate free will.

In a Privy Council case,4 however, it was observed that though the transaction was induced by undue influence, it does not necessarily follow that it was not made voluntarily. The Privy Council observed that a transaction of gift, which is the result of undue influence, would not be void, but would only be voidable. In that case, on the facts, no undue influence was found.

We do not, however, with great respect to the Privy Council, agree with the view that a transaction induced by undue influence is still to be taken as "voluntary". Undue influence may require proof of ingredients different from those of coercion or fraud, but the principle is the same-the quality of consent is impaired, and it is difficult to agree with the approach that where undue influence is present, and the quality of will is thereby impaired, the donor still acts "voluntarily".

A gift is, of course, "voluntary" in the sense that no donor can be forced to take any steps towards the completion of the gift. A person declaring that he will make a gift in future, may or may not carry out his declaration. There is no legal obligation. But this does not, in our view, exclude the other implications of "voluntarily".

1. AIR 1939 Rang 76 (80).

2. Justin II, VII, 2. Tyabji Muslim Imp, (1968), p. 304 (footnote).

3. U. Thita v. U Arasena, AIR 1938 Rang 76.

4. Ram Chandra v. Lakshman, AIR 1945 PC 54 (56) (Judgment by Madhavan Nair, J.).

106.10. Undue influence.-

We may add that as to the specific question of undue influence, the Supreme Court has held1 that the law relating to undue influence in the case of a gift, inter vivos, in the same as that in the case of a contract.

1. Subhash Chander v. Ganga Dass, AIR 1967 SC 878.

106.11. Second and third paragraph-Acceptance during lifetime and death before acceptance-Recommendation.-

Under the second paragraph of section 122, it is necessary that the acceptance must be during the "lifetime" of the donor. Similarly, under the third paragraph, if the donee "dies" before acceptance, the gift is void. The expressions "lifetime" and "dies" are obviously not appropriate for artificial legal persons. Although the legislature has, by suitable amendment in section 5 extended the concept of "living person", the extension has not found a corresponding reflection in section 122. It should, we think, be so reflected. We, therefore, recommend that the two paragraphs should be suitably amended to meet the point discussed above.

106.12. Revised draft of section 122.-

The following is our revised draft of the section in the light of what is stated above:

"122. (1) 'Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another person, called the donee, and accepted by or on behalf of the donee.

(2) such acceptance must be made during the life or existence of the donor and while the donor is still capable of giving.

(3) If the donee dies or ceases to exist before acceptance, the gift is void."

The Transfer of Property Act, 1882 Back

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