Gift, Essentials of Gift, Gift to an Unborn person

In the context of Hindu Law and the Transfer of Property Act, a Gift (Danam) is the transfer of existing movable or immovable property made voluntarily and without any monetary consideration.

1. Definition and Essentials of a Gift

Under Section 122 of the Transfer of Property Act, a gift is the transfer of property by one person (the Donor) to another (the Donee), accepted by or on behalf of the donee.

The Essential Elements are:

• Transfer of Ownership: The donor must completely divest themselves of all rights in the property.

• Existing Property: The gift must be of existing property (movable or immovable). A gift of "future property" is void.

• Voluntary: It must be made of free will, without force or undue influence.

• Without Consideration: There must be no money or "valuable consideration" involved. The motive is usually natural love and affection.

• Acceptance: The donee must accept the gift during the lifetime of the donor and while the donor is still capable of giving.

2. Gift to an Unborn Person

Under traditional Hindu Law, a gift to an unborn person was void. However, this has been modified by statutes:

• Current Rule: A gift cannot be made directly to an unborn person.

• The Mechanism: To gift property to an unborn child, one must create a prior life interest in favor of a living person. The property must then transfer to the unborn child the moment they are born.

• The "Whole Interest" Rule: According to Section 13 of the Transfer of Property Act, the gift to the unborn person must cover the entire remaining interest of the donor in the property. You cannot give an unborn person a "limited estate."

3. Difference Between Gift and Will

Feature	Gift	Will
Time of Effect	Takes effect immediately during the donor's lifetime.	Takes effect only after the death of the testator (maker).
Revocability	Generally irrevocable once accepted.	Entirely revocable by the maker at any time during their life.
Acceptance	Must be accepted by the donee during the donor's life.	No acceptance is required during the testator's life.
Registration	Compulsory for immovable property (Section 123 TPA).	Registration is optional.
Property	Must be existing property.	Can include property the testator acquires after making the Will.