Introduction
Gift means a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called donor, to another called donee and accepted by or on behalf of donee .
Thus Gift is a transfer between two living persons it can’t be executed in the future. Such acceptance must be made by the donee during the lifetime of the donor and while he is still capable of giving .if the donee dies before acceptance ,the gift must is void .
Under Islamic law ,the gift or Hiba is governed by the personal laws and does not require any registration in writing . However under TPA The registration of gift in writing must be mandatory . Under the Muslim law a gift is governed by its own rules and not by the TPA 1882.
As per the given query
1.Can father become a legal guardian of minor son ( donee) even at the same time he is the Donor also.
Yes the father become a legal guardian of a minor son ( donee) even at the same time as he is the donor also because in Muslim law the registration of a gift or Hiba is mandatory and the transfer of ownership of gift is same in Muslim law and in TPA, till the minor not attend the age of majority the father is his first legal guardian who can be a donee on behalf of a minor .
And till the life of father no other person can be a donee of the minor son .
Smt Hussenabi vs Husensab Hasan AIR 1989 , involved a grandfather offering his grandchildren a gift. He duly accepted the gift on behalf of his minor grandchildren.
2.Can Mother become a legal guardian of minor son even she is a donee of 20% also and a Muslim mother. .
Under the Islamic law ,clearly denies with the fact that a Muslim Mother cannot be a guardian of the minor child property and cannot accept the gift on behalf of underage son.
Musa Miya v. Kadar Bux, the donor declared the gift to his grandchildren in front of his friends. Nonetheless, as there was no acceptance by the father for the delivery of possession of the property, it was held that if the father is alive and the sole legal guardian, only he can act as a guardian of the property of his minor sons and without his acceptance the gift would be invalid and therefore, the gift was held to be incomplete and invalid. If the gift is accepted by the mother, then also it is considered to be invalid and incomplete.
3. Can we opt and go with Indian Secular law where we are not govern by Muslim personal law because I understand that a mother can not become legal guardian of son as per Muslim Law.
Though It is stated in the Muslim law that gift is governed by its own personal law and TRANSFER OF PROPERTY ACT is not applicable on gift made by the muslims .
But it is. A fundamental right to choose of the citizen as per Article 25 of the Constitution of India ,to selectively opt out for personal laws in the matter of their choice and seeks to be governed by secular legislation for the matter .
When a time is ripe up with more mature society it would allow a complete smooth transition to opt out from their personal laws to the secular legislations.
