Niveditha K Prasad

Deathbed bequests occupy an interesting liminal space between testament and a gift. While the secular succession law on the subject has benefitted from codification, Muslim personal law on the subject has been crystallised through continued practice. However, Hindu law on deathbed bequests suffers from a lack of clarity, having neither been codified or preserved through standardised practice, despite its common occurrence. This piece discusses this unexplored area of law and suggests amends to bring about clarity.

Introduction

Deathbed bequests have been a feature of various legal systems. They continue to have relevance, despite their historic origins, as they are a way to honour and give legal effect to the ‘last wishes’ of a dying donor. This post evaluates the Indian position on deathbed bequests in succession law. While there has been some amount of codification of this practice under Indian law, the situation remains hazy in some areas. The author looks at the Hindu law on the subject and draws a comparison with the law governing persons under the Indian Succession Act and under Muslim personal law. It identifies a significant gap in Hindu law on the subject that leads to several problems as illustrated by case law. The author argues that Hindu law lacks a balance between facilitating these transactions and preventing abuse and therefore, must be codified. Further, the paper identifies certain flaws in the framework of deathbed bequests that need to be addressed in any potential codification under Hindu law.

The paper proceeds as follows: first, the origins of ‘deathbed bequests’ or donatio mortis causa (‘DMC’) is traced and its evolution in the United Kingdom is explained, with an emphasis on the ambiguous nature of DMC and the way the debate has been resolved in that jurisdiction. Second, the framework in Indian law is described. Third, the Hindu law on DMC is analysed. The gaps, inconsistencies of Hindu law, and other applicable statutes are also examined. Fourth, the author makes a case for codification accounting for the existing flaws and societal conditions that are unique to India and Hindus.

Origins and Evolution of DMC

The concept of deathbed bequests can be traced to the idea of donatio mortis causa (DMC). It has its origins in the Roman law where DMC allowed persons in their ‘last sickness’ to bequeath property without undergoing the formality of a strict testamentary law. Gradually, it was absorbed into English and then Indian law.

A long-standing debate in the subject of DMC is with regard to its ‘amphibious’ nature. The bequest operates as a gift in that it is delivered inter vivos and is distinguished from a will.. However, case law in England has sometimes inferred it as testamentary in nature that has to adhere to the testamentary act, considering that the person makes it in contemplation of death. It also displays the nature of a testament as strictly speaking, it can be revoked. This debate is relevant as it determines several crucial questions related to DMC: what should be the legal capacity of the person bequeathing property – can the bequest be revoked?;if yes, what rules apply?; what kind of property can be bequeathed?

In the UK, the question has been resolved by case law. In the landmark case Sen v Headley, the Court of Appeal clearly identified DMC as a “legal anomaly” with more of the characteristics of a gift, rather than a testament. In extending DMC to immovable property as well, the Court expressly ruled that it circumvented the provisions of the Statute of Frauds or the Wills Act which required more formal declarations for gifting of land, thereby emphasising its nature as a gift and rejecting its application as a testament. As a result, to prove that a DMC was indeed valid in case of both chattel and land, only three conditions were required: first, the gift must be in contemplation, not necessarily in expectation of death; second, the gift is absolute on the donor’s death and can be revoked until that death occurs; third, the delivery of the gift must be such that there is parting with dominion of the subject of gift, that is, the ability to control it. Giving up dominion has been interpreted to mean a preclusion of the donor from dealing with the property. This in turn has two elements: intention to give up control of the good and sufficient delivery. Authorities have defined sufficient delivery of the goods as giving away of physical possession, some way of  ‘accessing the subject matter’ or documents that show entitlement to possession of a property (Davey, ❡23). The conditions listed above are to be read strictly to prevent abuse of the practice and allow invalidating ineffectual testaments by passing it as a DMC (❡51). The strict adherence to the requirements connection to the special circumstances of a deathbed bequest and the condition of the donor has been judicially recognised in the UK. This is also in line with the recognition that DMC is a legal anomaly.

Indian Legal Framework under Statute and Personal Law

The Indian Succession Act, 1925 (‘ISA’) is currently the only codified legislation about gifts made in contemplation of death. Section 191 of the Act, that applies to anyone who is not a Hindu or Muslim, empowers a person to bequeath any movable property which she would be able to dispose off under a testament. It further provides in §191(2) that the property, to be considered a gift in contemplation of death, must be bequeathed by the person who is ill and expecting to die of illness, delivers its possession to another person in case they die due to that illness. Further, under §191(3),  if the person recovers from the illness or if the donee predeceases the person who bequeaths the property, then the property reverts to the original holder.

Indian Courts have interpreted the section to provide more clarity to deathbed bequests. In Commissioner of Gift Tax, Ernakulam v Abdul Karim Mohammad, the Supreme Court laid down five conditions for a valid DMC, referring to the landmark English case Cain v Moon. The gift should be a movable property, made in contemplation of death when the donor was sick and expected to die shortly, with no hope of recovery. Further, there must be delivery of the possession of the property and the deceased must have given up ‘dominion’ of the property. The gift will not take effect if the donor recovers or the other individual predeceases them. It may be observed here that is quite close to the position in English law, apart from the fact that this applies only to movable property.

While there is no codified Muslim law, the practice of Marz-ul-Maut is prevalent. It is similar to DMC in that the person must be ill and expecting death. However, there are important differences. First, the person is empowered to bequeath both movable and immovable property. Second, classical Muslim law generally prohibits gifting of more than 1/3rd of the person’s property (there are some sect-specific rules applicable). Third, if the person recovers from her illness, the gift will no longer be considered marz-ul-maut and will be effectuated immediately as a normal gift. According to Fyzee, marz-ul-maut does not fall under the category of irrevocable gifts. Therefore, we can reasonably infer that a marz-ul-maut gift is revocable.

Despite the differences, there are some general observations that can be made about DMC under these two frameworks: first, there is some kind of limit on the property that can be the subject matter of a deathbed bequest – either it is limited quantitatively or qualitatively; second, the gift is revocable within the lifetime of the donor, similar to a will. It is argued here that the limit inbuilt in this framework is crucial to bring in balance in the law related to deathbed bequests. As mentioned above in the discussion of English law, the law here should aim to balance the need to facilitate deathbed wishes while also ensuring that the practice is not  abused.

Position under Hindu Law

Hindu law presents a unique problem in the context of DMC as no express statute governs it. Since DMC is closely connected with the concept of a testament, this sits uneasily with classical Hindu law which did not recognise a testament. However, Section 30 of the Hindu Succession Act, 1956 clearly empowers a Hindu to divest of his property through a will or ‘other testamentary disposition.’ This extends to coparcenary interest in undivided property.

The case law on the subject is limited and is illustrative of the problems caused due to the lack of clarity. In Gara Surppadu v Pandranki Rami Naidu, the Court simply did not make an authoritative ruling on the applicability of §191 of the ISA to Hindus although commentaries have argued against its applicability. §122 of the Transfer of Property Act governs gift of property. The provision applies to both movable and immovable property and clarifies that it requires transfer of property between a person capable of giving to another living person who must accept it in the donor’s life time. The bequeath may be oral or written. Interestingly, however, by Section 129 of the Transfer of Property Act, the provisions under that Chapter dealing with gift do not apply to movable property that is gifted in contemplation of death. Therefore, even though some authorities claim that there is no distinguishment made between gift made in contemplation of death and an ordinary gift under Hindu law, there is a stipulation that distinguishes between the two. However, despite the apparent difference made, no rule governs DMC under Hindu law.

It becomes evident therefore that there is no specific concept similar to DMC in Hindu law. The result is that the concept of DMC has to be boxed under testament or a gift under Hindu law. As a testament, the standard of proof for a bequest even when the case relates to donatio mortis causa is that of a testament and therefore, higher than other documents. An attesting witness, for example, is necessary. This was ruled in the case Dhannulal v Ganeshram. As a gift, the conditions under Section 123 of the Transfer of Property Act have been applied by Courts even when the situation is close to a donatio mortis causa, despite the statutory stipulation under Section 129 of the Transfer of Property Act. In the case Smt Sandhya Basu Mallick v Pramatha Nath Sen, the deceased had apparently given away movable and immovable properties as donatio mortis causa to some relatives . To determine if the gift was valid, the Calcutta High Court referred to the conditions under Section 123 of the Transfer of Property Act. For movable property therefore, a registered instrument or delivery by way of goods sold was required and gift of an immovable property required a registered instrument.

Bringing Balance to Bequests

The foregoing account allows us to distinguish donatio mortis cause as currently present in Hindu law with frameworks in English law, as well with the ISA and Muslim law in India. There seems to have been no importing of the strict requirements under English law, even as it seems to apply to both movable and immovable property. The crucial difference when compared with the ISA and the Muslim law frameworks is that DMC lacks the safeguards and limits present in these frameworks. Neither is there a check on the kind of property (movable or immovable) that can be bequeathed nor is there a quantitative limit on the amount of property that can be gifted, like in Muslim law. Further, there may be difficulties in the revocation of a gift once the person has recovered from illness or wishes to revoke it prior to her death. This is due to the stipulation provided in §126 of the Transfer of Property Act which states that a gift cannot be revoked merely due to the will of the donor. Further, although the statute does seem to differentiate between inter vivos gift and a donatio mortis causa, the treatment given by Courts, as seen above, does not indicate this as they refer to the standard posited by the statute.

This presents difficulties in effectuating the donor’s deathbed bequest. Due to the higher standard of proof, coupled with the fact that the donor might simply not be in a position to adhere to these requirements, the donation might not be effectuated due to challenges by disappointed heirs. Another important factor that ought to be considered here is the impact of gifting away property on potential heirs. Since persons who want to make a deathbed bequest will have to take the route of a testament (as an alternative to making a statutory gift), there is no check on whom they can gift the property too. Considering the social circumstances and the highly patriarchal set-up of families in India, it is very likely that a person may preclude his daughters and other female heirs from the benefits of the statutory provisions. In fact, some have argued that the very inclusion of unfettered testamentary succession was to deprive daughters of their rightful share. This risk also exists when we consider donatio mortis causa as a gift because the power of the donor even in this paradigm is unfettered.

The preceding sections illustrated the different frameworks applicable to deathbed bequests and the lack of clarity and coherence in Hindu law on the subject. Thus, there is a strong case to be made for codification under the Hindu Succession Act. The codification must account for the need to have strict requirements to prevent abuse even as it facilitates transactions of this nature. This may be done by importing the requirements currently present under English law and the Indian SC’s interpretation of the Indian Succession Act’s provision. Even while these requirements are strict, they do not present the challenges present under the current regime where the higher standards of testaments or gifts are used. The proposed requirements while strict enough to prevent abuse, does not require undue formality which may pose difficulties for the donor who is on her deathbed.

Further, some kind of qualitative or quantitative limit must be introduced to prevent deathbed bequests as a way of precluding women from statutory benefits. The debate in Parliament during the discussion of the Hindu Succession Act provides us some assistance here. Some members were alive to the possibility that Section 30 of the Act may be used to deprive women of property and therefore, proposed to limit the amount of property that can be willed away to one half of their property. Although that proposal was not incorporated, it is suggested here that a quantitative limit on bequeathable property be introduced, considering the unique nature of deathbed gifts and the situation in which they are usually made.

Conclusion

This essay looked at English and Indian law about deathbed bequests. Through an examination of the various applicable laws, it illustrated the incoherence and lack of clarity in Hindu law on the subject. By considering the special circumstances in which a deathbed bequest is made and the possible harmful repercussions arising out of an unfettered right to make a deathbed bequest, the author has suggested that there be additional safeguards built in any future codification of the law.

Niveditha K Prasad is an undergraduate student at NLSIU and Deputy Managing Editor, LSPR.