A Gift by a mother to an infant child without delivery of possession.

Question: A Gift by a mother to an infant child without delivery of possession. [HJS 1998]

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Answer

A gift is generally a transfer of ownership of a property by a living person to another living person without any consideration. In Islamic law, gifts are known as ‘Hiba’. To be very precise, a gift implies an extensive overtone and appertain to all kinds of transfers of ownership not involving any consideration. On the other hand, the term ‘Hiba’ includes a narrow connotation. It is basically transferred inter vivos i.e. between living persons.

Section 122 in The Transfer of Property Act, 1882 defined “Gift” as 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. Acceptance when to be made.—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.

Juristically, in Islamic law, a Hiba is treated similarly to a contract consisting of an offer to give something on the part of the donor and acceptance on the part of the donee. Thus, to make a Hiba three essential formalities have to be fulfilled.

1. A declaration of gift by the donor

2. Acceptance of the gift by the donee

3. Delivery of possession by the donor and taking of possession by the donee

The person in whose favour the gift is made is known as the donee. For being a competent donee, the only essential requirement is that a donee must be any person in existence at the time of the making of a gift. He may be a person of any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba in favour of a non-muslim, female, minor or an insane person.

Child in Womb: A child in the mother’s womb is a competent donee provided that it is born alive within six months from the date on which the gift was made. If after the declaration of the gift the child dies in the womb or an abortion takes place, the gift becomes void. Also, the child must be in existence in the mother’s womb at the time of the making of the gift. If a child is not in the mother’s womb or the conception takes place after the declaration of the gift, such a gift is void ab initio.

For the validity of a gift, it must be accepted by the donee. In case the donee is minor, the acceptance on behalf of a minor can be given by the guardian of the property of the minor. However, for the purpose of acceptance of the gift, the guardian of a minor or insane donee are as under in the order of priority:

1. Father

2. Father’s executor

3. Paternal grandfather

4. Paternal grandfather’s executor

Therefore, it is to be noted here that the mother is not recognized as the guardian of the property of her minor child. Hence, she is not entitled to accept the gift on behalf of her minor child.