Section 122 of the Transfer of Property Act defines ‘Gift’ as:-
“Gift” is the transfer of certain existing moveable or immoveable 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.”
Section 127 throws light on the question of validity of transfer of property by gift to a minor. It recognises minor’s capacity to accept the gift without intervention of guardian, if it is possible, or through him.
“127. Onerous gifts Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person. A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.”
The last part of Section 127, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under Section 11 of the Contract Act is, however, competent to accept a non onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it.
Thus the position in law, thus, under the Transfer of Property Act read with the Indian Contract Act is that the acquisition of property being generally beneficial, a child can take property in any manner whatsoever either under intestacy or by Will or by purchase or gift or other assurance inter vivos, except where it is clearly to his prejudice to do so. A gift inter-vivos to a child cannot be revoked. There is a presumption in favour of the validity of a gift of a parent or a grandparent to a child, if it is complete. When a gift is made to a child, generally there is presumption of its acceptance because express acceptance in his case is not possible and only an implied acceptance can be excepted.
Section 122 covers the case of a minor donee being a person under legal disability. The section, therefore, employs the expression – ‘accepted by or on behalf of donee’. Further, Section 127 clearly indicates competence of a minor donee to accept the gift, if he is capable of so doing. Such acceptance of a gift can be made by himself or on his behalf by someone else.
It is pertinent to mention that when the gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift it is only normal to assume that the donee had accepted the gift because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift.
It was open to the donor to transfer by gift title and ownership in the property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment.