How a father can gift property to his minor child.

If at the time of conveying a gift the donee was minor, the acceptance of gift could be made by his or her guardian and predominantly for the reason of minority of donee alone, the factum of gift made by his natural guardian does not cease to exist but remains valid on fulfillment of all ingredients of valid gift. A minor donee may not have the capacity to understand the legal consequences as in this case where the donee was only five years of age when his father put into words the gift but minor was a person in existence and thus he was a competent donee. According to all schools of thoughts under the Muslim law, a father has been recognized and acknowledged as the natural guardian of his child though, in the case in hand, the donor was father and gift was accepted by real mother of donee on his behalf. Even if the gift was not accepted by the mother, it would not have any adverse impact or effect on the gift made by a father in favour of his minor son. In case a guardian makes a gifts in favour of his ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession is not compulsory provided that there must be a bona fide intention on the part of the guardian/real father to divest and part from his ownership and pass on it to the donee out of love and affection. According to authoritative and trustworthy texts on Muslim Law, if the donee is minor son of the donor, then delivery of possession itself is not de rigueur or compulsory, as it is foreseeable in case of other donees under a hiba. The possession of the guardian amounts to possession of minor and separately no aliunde evidence is required to prove that the guardian handed over possession of the property to the minor. In this regard, a lucid exposition has been divulged by D. F. Mulla in his book “Principles of Muhammadan Law” in the annotation No.155, that no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give.

CIVIL PETITION No. 1647 OF 2018

Abid Hussain and others VERSUS Muhammad Yousaf and others 

PLD 2022 SC 395

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