Rules that Govern both Gifts and Wills under Hindu Law

Rule No. 1:

The first important rule applicable to wills and gift-deeds is that a benignant construction should be adopted. If the real meaning and intent of the document can reasonably be ascertained from its language (although such language may be grammatically or technically imperfect), that meaning is to be enforced to the extent allowed by law.

Therefore, if an estate is given to a man simply, without express words of inheritance, in the absence of any contradictory context, it would carry an estate of inheritance under Hindu law. Thus, a gift to A simply without the words “and his heirs” would pass an absolute estate to A under Hindu law.

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Rule No. 2:

It is perfectly legal for a Hindu to create a life-estate, or successive life-estates, or any other estate for a limited term, provided that the donee is a person capable of taking the property under the gift-deed or the will.

Rule No. 3:

Under the uncodified Hindu law, a man could not create a new form of estate, or alter the line of succession by law, for the purpose of carrying out his personal wishes. The rules of inheritance were laid down by the State, not merely for the benefit of the individual, but for the good of the society. Therefore, a will or a gift deed could not institute a course of succession unknown to Hindu law. Thus, for instance, an English estate tail is an estate unknown to Hindu law, and no person could succeed under a gift or as an heir under a will giving such an estate.

In Tagore v. Tagore (referred to above), property was bequeathed to B, and after him, to the male heirs of his body, i.e., what would be known in English law as heirs in tail male. This case laid down the following three legal principles:

Firstly, it was held that the bequest to B’s heir would be void, as these amounts to an estate in tail male, which is unknown to the old Hindu law.

Secondly, Â does not get an absolute interest under the will, but only a life-interest.

Lastly, after B’s life-interest, i.e., when  dies, the property would revert to the testator’s estate, viz., it would go to the heirs of the testator.

Rule No. 4:

Where a gift is made to a person who is not in existence at the date of gift, or a bequest is made to a person not in existence at the date of the testator’s death, subject to a prior gift or bequest, the later gift or bequest does not take effect, unless it extends to the whole of the remaining interest of the donor or the testator in such property. (This rule is taken from S. 13 of the Transfer of Property Act and S. 113 of the Indian Succession Act.)

Rule No. 5:

As regards a gift, no transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who would be in existence at the expiry of that period, and to whom the interest created is to belong, if he attains full age. (See S. 14 of the Transfer of Property Act, which enunciates the rule against perpetuity.)

As regards a bequest, no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who would be in existence at the expiry of that period, and to whom the thing bequeathed is to belong if he attains full age. (See S. 114 of the Indian Succession Act.)

Rule No. 6:

If a gift or a bequest is made to a class of persons, with regard to some of whom it fails by reason of Rule 4 or Rule 5 (above), such a gift or bequest fails in regards to these persons only, and not in regard to the whole class. (See S. 15 of the Transfer of Property Act and S. 115 of the Indian Succession Act.)

Rule No. 7:

If a gift or bequest fails by reason of Rule 4 or Rule 5 (above), any gift or bequest intended to take effect on failure of such prior gift or bequest also fails. (See S. 16 of the Transfer of Property Act and S. 116 of the Indian Succession Act.)

Rule No. 8:

If there are independent and alternative gifts or bequests, of which one is good, and the other is void, the former takes effect and the latter is to be disregarded. (Rai Kishori v. Debendranath, 1888 15 Cal. 409)

Rule No. 9:

It is competent to a Hindu to make a grant of an absolute estate, which is defeasible on the happening of a subsequent event. However, in such cases, the event must happen immediately on the close of a life in being, and the gift over must be in favour of a person in existence at the date of the gift, or the death of the testator, as the case may be. Otherwise, the gift over would be void, and the absolute estate granted to the first donee would remain unaffected. (Soorjemoney Dossee v. Denobundoo Mullick, 862 9 M.I.A. 123)

Rule No. 10:

A gift or a bequest by way of a remainder is valid, provided the following two conditions are satisfied :

(a) The grant is to take effect immediately on the close of a life in being; and

(b) It is made to a person in existence at the date of the gift or at the testator’s death, as the case may be. (Ranganadha v. Baghirathi, 1906 29 Mad. 412)

Rule No. 11:

If, by the terms of a deed or will, an absolute estate of inheritance is created in favour of a person, any subsequent clause purporting to restrict that interest would be invalid, and the donee would take an absolute estate, as if such clause was not contained in the document. (Bhaldas v. Bai Gulab, 1922 49 I.A. 1)

Rule No. 12:

If property is given absolutely to a person, but the gift-deed or will contains a direction that it shall not be alienated or partitioned, or that it shall be applied or enjoyed in a particular manner, such a direction is inoperative, and the donee takes the property, as if no such direction was contained in the document.

Rule No. 13:

If a gift-deed or will confers an absolute estate, but directs that the property shall not go to the donee or the legatee (as the case may be), until he has attained a certain age beyond the period of his majority, such a direction is inoperative, and he is entitled to the property on attaining majority, as if there was no such direction in the document. However, such a direction would be valid, and it would take effect if, during the interval, the income of the property is disposed of in favour of some other person.

Rule No. 14:

In the case of a gift, if the terms of the document direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than —

(a) The life of the transferor; or

(b) A period of eighteen years from the date of the transfer, such a direction is void to the extent to which the accumulation directed exceeds the longer of the periods (a) or (b) given above, and at the end of such period, the property and the income thereof is to be disposed of as if the period during which the accumulation has been directed to be made has elapsed.

In the case of a will, if the terms thereof direct that the income arising from any property is to be accumulated, either wholly or in part, during any period longer than eighteen years from the death of the testator, such a direction is void to the extent to which the period during which the accumulation is directed exceeds such period; and at the end of the said period of eighteen years, the property and the income thereof is to be disposed of as if the period during which the accumulation has been made has elapsed.

However, there are three exceptions under this rule, and any direction for accumulation for the following three purposes is not affected, viz., —

(i) The payment of the debts of the transferor or the testator or any other person taking any interest under the transfer or will; or

(ii) The provision of portions for children or remoter issue of the transferor or of the testator, or of any other person taking any interest under the transfer or will; or

(iii) The preservation or maintenance of the property which is transferred.

Rule No. 15:

A Hindu may, by a gift-deed or will, grant a power of appointment to a person or persons named therein. If an appointment is made pursuant to a power in favour of two or more persons, and the appointment is invalid as to one or more of them, it does not thereby cease to be valid as regards the rest of them.

Rule No. 16:

If a gift or a bequest is made to two or more donees or legatees, and they take such a gift or bequest as tenants-in- common, the share of each person will pass, on his death, to his heirs by succession. If, however, they take as joint tenants, the undivided interest passes, on his death, by survivorship.

Rule No. 17:

English rules of construction must be applied with great caution when construing Hindu wills or gift-deeds. In this connection, a reference may be made to the observations of Wilson J. in Ram Lai Sett v. Kanai Lai Sett.