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HINDU DISPOSITION OF PROPERTY ACT, 1916
STATEMENT OF OBJECTS AND REASONS "The object of the present Bill is to enable Hindus and Mussalmans to dispose of property by transfer inter vivos and by will for the benefit of unborn persons within certain limits. According to the Hindu Law as now administered in British India, a gift in favour of a person not in existence at the date of the gift is void : and so also a bequest in favour of a person not in existence at the time of the testator's death. The same is the rule of Mohammedan Law except that, under the provisions of the Musslamans Wakf Validating Act, 1913. it is competent to a Mohammedan to settle property for the benefit of unborn persons even in perpetuity, provided the ultimate disposition is for the benefit of charity. Every lawyer familiar with the Indian Courts must have come across a large number of settlements and wills made by Hindus and Muhammandans for the benefit of their children and grand-children. The paramount object of the settler in all these cases has been to provide not only for his children and grand-children then in existence, but also for those lo be born hereafter, instead, however, of giving effect to the settler’s intention, the law as now administered completely defeats it. Even where a donor has only one child in existence at the date of the gift, and the gift is made in express terms for the benefit of all his children including those to be born here after, the law excludes from the benefit of the gift all children born subsequently to the date of the gift to the entire subversion of the donor's intention. Similarly, the intention of testators to benefit by their wills their children and grand-children not in existence at the death of the testators is also defeated. It is to remedy these evils, and to give effect to the settler’s or testator's intention, that the present Bill is proposed. The sole object of the Bill is to enable the Court to carry out settler’s or testator's intention which, under the present state of the law, they are precluded from it. At the same time it is recognised that this can only bed one within the limits allowed by the rule against perpetuity, and these limits are prescribed, in clauses 4 and 5. The effect of this Bill if passed into law, will be to enable Hindus and Muhammadans to make dispositions of their property to the same extent, and subject to the same limitations as other communities in British India." Gazette of India, 1916, Part V. page 2. SELECT COMMITTEE REPORT [* * * * *] "In obedience to the instructions contained in the order of reference, we have so amended the Bill as to confine its operation to Hindus save that in the exercise of the discretion vested in us, we have inserted an enabling clause permitting the Governor-General in Council to extend its provisions to the Khoja community in the whole or any part of India where he is satisfied that the community in question desires the extension. Having regard to the existence of the Hindu Transfers and Bequest Act. 1914(Madras Act I of 1914), we have limited the extent clause of the Bill so as to exclude the Province of Madras from its operation, but we have inserted a power allowing the Governor-General in Council to extend the Act to that Province should this course at any time be considered necessary or desirable. The most important clause in the Bill was clause 3 and this clause (now clause 2) we have recast so as to provide that no disposition of property by a Hindu, whether by a transfer inter vivos or by will, shall be invalid by reason only that any person for whose benefit it may have been made was not in existence at the date of such disposition. We consider that the clause as drawn in this form avoids many of the difficulties which would arise if we had retained the positive form in which it appeared in the Bill as referred to us. Clauses 4 and 5 of the Bill as referred to us endeavor to combine the provisions of the relevant sections of the Indian Succession Act, 1865, and the Transfer of Property Act, 1882. The language of the two Acts differs in slight respects and we think it in every way desirable not to attempt to combine '.heir provisions in a composite clause, and we have preferred in section 3of the Bill, as revised by us. lo incorporate the sections of the Acts in question by reference. We are well aware that referential legislation of this kind is open to objection, but in the circumstances, we feel that the practical advantage of reference to a well known Code, and the incorporation of all the decisions under these provisions outweigh any such objection. In this connection, we have thought it well to include the provisions of section 20 of the Transfer of Property Act, 1882, as the wording of the Transfer of Property, differing in that respect from the Indian Succession Act does not without this section, make it clear that the property is vested. The only other change of substance is the omission of clause 6 of the Bill as referred to us. A perusal of the opinions recorded on the Bill leads us to the conclusion that there is no clear manifestation of opinion in favour of the retention of the English rule laid down by the clause of question, and we think, in the absence of any consensus of opinion in favour of the rule that the clause should be omitted. The remaining alterations are mere alterations of form consequent upon the manner in which the Bill has been recast....." Gazette of India, 1916, Part V. page 76.
An Act to remove certain existing disabilities in respect of the power of disposition of property by Hindus for the benefit of persons not in existence at the date of such disposition. WHEREAS it is expedient to remove certain existing disabilities in respect of the power of disposition of property by Hindus for the benefit of persons not inexistence at the date of such disposition; It is hereby enacted as follows :
This Act was extended to the new provinces and merged States by the Merged States (Laws) Act. 1949 (59 of 1949). S. 3 (1-1-1950) and to the Union territories of Manipur.Tripura by the Union Territories (Laws) Act. 1950 (3001 1950), S.3 (16-4-1950): While Manipur and Tripura are full-fledged States now under Act 81 of 1971, Vindhya Pradesh to which this Act was extended by Act 30 of 1950. now forms part of M.P. State -See Act 37 of 1956. S.9(l)(e). This Act was extended to the States merged in the State of Bombay See Bom. Act 4 of 1950. It was partially extended to Berar (now a part of Maharashtra State) By Act 4 of 1941, and the States merged in the then State of M.P. by M.P. Act 12 of 1950. The Act has now been extended to the Union territory of (i) Dadra and Nagar Haveli by Regn. 6 of 1963 (1-7-1965). (ii) Pondicherry by Act 26 of 1968.
SECTION 01: SHORT TITLE AND EXTENT
(1) This Act may be called the Hindu Disposition of Property Act, 1916.
2[(2) It extends to the whole of India except .the State of Jammu and Kashmir.]
State Amendments
STATE AMENDMENT Pondichery); In section 1, after sub-section (2). Insert the following proviso:
"Provided that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry. ''Act 26 of 1968. section 3(1) of Sch.
SECTION 02: DISPOSITIONS FOR THE BENEFIT OF PERSONS NOT IN EXISTENCE
Subject to the limitations and provisions specified in this Act, no disposition of property by a Hindu, whether by transfer inter vivos or by will, shall be invalid by reason only that any person for whose benefit it may have been made was not in existence at the date of such disposition.
SECTION 03: LIMITATIONS AND CONDITIONS
- The limitations and provisions referred to in section 2-shall be the following, namely:-
(a) in respect of dispositions by transfer inter vivos, those contained in [Chapter II] of the Transfer of Property Act, 1882-, and
(b) in respect of dispositions by will, those contained in [sections 113-.114-,115-and116 of the Indian Succession Act, 1925-].
STATE AMENDMENT Maharashtra: Gujarat : In clause (b) of section 3. Omit "113." Bom. Act 54 of 1947: Act 11 of 1960 section 88.
SECTION 04: FAILURE OF PRIOR DISPOSITION
- [Repealed by the Transfer of Property (Amendment) Supplementary Act, 1929 (21 of 1929), section 12.]
SECTION 05: APPLICATION OF THIS ACT TO THE KHOJA COMMUNITY
- Where the 5[State Government] is of opinion that the Khoja community in6[the State] or any part thereof desire that the provisions of this Act should be extended to such community7[it] may, by notification in the8[Official Gazette], declare that the provisions of this Act with the substitution of the word "Khojas" or "Khoja", as the case may be, for the word "Hindus" or "Hindu" wherever those words occur, shall apply to that community in such area as may be specified in the notification and this Act shall thereupon have effect accordingly.
Notes:
1 Substituted for sub-section (2) by the Miscellaneous Personal Laws (Extension) Act. 1959 (48 of 1959). S. .3 (l-2;1960).
2. Substituted for sub-section (2) by the Miscellaneous Personal Laws (Extension) Act. 1959 (48 of 1959). S. .3 (l-2;1960).
5. Substituted for ''Provincial Government'' by A.L.O., 1950
6. Substituted for ''the province'' by A.L.O., 1950.
7. Substituted for ''he'' by A.o., 1937.
8. Substituted for ''Gazette of India,'' by A.L.O., 1937.
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