1. In this case the plaintiffs seeks to recover possession of a certain portion of land which originally formed part of the joint ancestral property of his father (the defendant No. 1) and his father's brothers. In 1870 plaintiff's father and the Brothers of plaintiff's father separated in interest, hat the field of which the land in suit forms part was provisionally assigned for the maintenance of their mother, and therefore was not at the time partitioned. Subsequently, after the death of the mother, the plaintiff's uncles executed, as to their unpartitioned share in that field, a document in favour of the plaintiff, then an infant, purporting to be a deed of gift. The document is Exhibit 17. It is dated 15th November, 1877, and was duly registered. According to its provisions the plaintiff's mother was to be the guardian of the plaintiff for the purposes of that property. It is not alleged that the plaintiff's uncles ever themselves enjoyed personally possession of the land in question, or delivered possession thereof to the plaintiff or to any one on his behalf. The plaintiff's father who was in possession remained in possession, paid the assessment and apparently had undisturbed management. In 1885 the plaintiff's father executed a mortgage, which included the property in suit. This mortgage was without possession.
2. On 1st January, 1887, the mortgage of 1885 was redeemed by moneys obtained from defendant No. 2, advanced on a mortgage with possession of the same land.
3. The plaintiff attained majority in 1892 and instituted the present suit on 2nd January, 1899, making his father a party thereto as well as defendant 2, the mortgagee before mentioned.
4. It appears that as third parson not joined in this suit had bought the right, title and interest of the defendant No. 1 in the property in question at an auction-sale, and the lower Courts held that this auction-purchaser was a necessary party to the suit.
5. The main grounds of the defence were, however, that the gift was invalid both because it was unaccompanied with possession and because it purported to be the gift of an undivided share, and that more than twelve years of adverse possession barred the plaintiff's claim to disturb the mortgage in which it was suggested he had acquiesced.
6. The leading cases on the question whether delivery of possession is necessary to the validity of a gift by a Hindu donor appear to be the Privy Council cases Kalidas Mullick v. Kanhaya Lal Pundit (1884) 11 Cal. 121 followed in Ugarchand v. Madapa (1885) 9 Bom. 324 and Nawab Ibrahim Ali Khan v. Ummatul Zohra (1896) 19 All. 267 . The first-mentioned of these corrected the error in Kachu Byaji v. Kachoba Vithoba (1873) 10 Bom. H.C. 491 that delivery of possession was indispensable to the validity of a sale under Hindu laws Their Lordships pointed out that the error appears to have arisen from a misconception as to what had been decided in Harjiwan Anandram v. Naran Haribhai (1867) 4 Bom. H.C. 31, the real point in which was that the alleged donor had reserved his jus disponendi, had denied the fact of the gift and had continuously received the rent for the subject-matter. These last-mentioned circumstances ware emphasised as differentiating that case from one in which the donor bad done all she could to complete the gift, was a party to the suit and admitted the gift to be complete (1884) 11 Cal. 132. Their Lordships also pointed out, as contributing to the error, the misleading nature of the head-note in Girdhar Parjaram v. Daji Dulabhram (1870) 11 Cal. 132 as to what was the essential ground of decision in that case. The judgment in Kalidas Mullick v. Kanhaya Lal (1884) 11 Cal. 121 further distinguishes between cases of contracts on the face of them purporting to be for performance in future, as in the cases of Rajah Saheb Perhlad Sein v. Baboo Budhoo Singh (1869) 12 M.I.A. 275 and Rani Bhobasoondri v. Issurchunder Dutt (1872) 11 Bom L.R. 36 on the one hand, and cases where under the terms-of a gift the donor is entitled to possession on the other, and. with reference to the last-mentioned cases observed that there is no reason why a gift or contract of sale, if it is not of a nature which makes the giving effect to it contrary to public policy, should not operate to give the donee or purchaser a right to obtain possession.
7. The contention having been raised that the completion of a gift by possession was required on the analogy of the feudal rule as to investiture and livery of seizin, their Lordships preferred the analogy found in cases relating to voluntary contracts or transfers, where if the donor has done all that he could do to perfect his contemplated gift he cannot be compelled to do more. With this may be compared the rulings in Standing v. Bowring (1886) 31 Ch. D. 282 and cognate cases.
8. As to the contention that the deed of gift was utterly invalid because the donor was out of possession and no possession was ever given to the donee, it was observed 'that the dispute was not between the donee and the donor, or a person claiming under her' I.L.R. 11 Cal. 132. Thus the effect of the decision in Kalidas, Mullick's case is to recognize that as between a donee and a stranger, a gift may be valid though at the time the donor may have been out of possession and though the donee may never have obtained possession, provided that the debtor bad done all the donor could to complete the gift.
9. The other Privy Council case of Nawab Ibrahim v. Ummatul Zohra (1896) 19 All. 267 . 1 seems to establish the converse, viz., that when thealleged donor has not done all be could to complete the gift, but has made a reservation of the jus disponendi, the alleged gift is unsustainable. The essential to the validity of a gift seems to be, therefore, that the donor should have done all he could to complete the gift.
10. It may be noted that the case of Vasudeo Bhat v. Narayan Daji Damle (1882) 7 Bom. 131, was decided two years before that of Kalidas Mullick (1884) 11 Cal. 121 end so far as it is inconsistent therewith, is overruled thereby.
11. The case of Ugarchand v. Madapa (1885) 9 Bom. 324 decided shortly after Kalidas Mullick's case, applied its principles to a karamama, where the person who executed it was not in possession, and declared the Full Bench? decision in Bari Suraj v. Dalpatram Dayashanker (1880) 6 Bom. 380 overruled.
12. The Allahabad High Court, in Man Bhari v. Naunidhi (1881) 4 All. 40 followed in Balmakund v. Bhagwandas (1894) 16 All. 185 seems to have held that the validity of the gift was dependent on, or at least established by, the delivery of the deed of gift. But the first of these was decided before Kalidas Mullick's case, and the second does not refer to it. In Man Bhari v. Naunidhi, the fact that the donor had relinquished the subject of the rent), so far as he could, was apparently regarded as the most important circumstance in the case. The case Lakshimoni Dasi v. Nittyananda Day (1892) 20 Cal. 469 was one in which the alleged donor had executed a duly registered deed of gift, but four years after sold a portion for consideration and later another portion. The Calcutta High Court in that case, citing the decision in Dharmodas Das v. Nistarini Dasi (1887) 14 Cal. 446 as correct in cases to which Section 123 of the Transfer of Property Act applies, appears to have held that acceptance on the part of the donee was essential to the validity of a gift. The judgment in Lakshimoni Dasi's case makes, however, but the most cursory reference to Kalidas Mullick's case, which, it may be noted, nowhere refers to acceptance by the donee as essential. But as in Lakshimoni Dasi's case the alleged donor had never given possession and the alleged donee had never made any objection to the subsequent vendor's possession it is possible to regard that case as not inconsistent with the principle in Nawab Ibrahim Ali Khan v. Ummatul Zohra (1896) 19 All. 267 and as regarding the alleged gift as incomplete on the ground that though a document was executed, the alleged donor never intended to give effect to it and did not do all he might in order to give effect to it, and that the alleged donee having apparently acquiesced in his subsequent dealings with the property, it was fully understood that the mere execution of the document was not all that the done would have done if he had wanted to perfect his gift. In Meher Ali v. Tajuddin (1888) 13 Bom. 156 the decision of the Privy Council in Kalidas Mullick v. Kanhaya Lal (1884) 11 Cal. 121 was referred to, but deemed in applicable to a case governed by Mahomedan law and this Court s ruling in Mohinnudin v. Manchershah (1882) L.R. 15 was, therefore followed, though in the same year the Privy Council crime, Mahomed Buksh Khan v. Hosseini Bibi (1888) L.R. 15 , applied the principle of Kalidas Mullick's case to Mahomedan law.
13. The following case may be noted as instances in which the ruling in Kalidas Mullick has been followed: Lallubhai v. Kesho (1886) P.J. p. 33; Shankar v. Visaji (1884) P.J. p. 35; Ramchandra v. Mahsu (1888) P.J. p. 14 and in one of them, Lallubhai v. Keso registration was regarded as capable of supplying want of possession. In Rajaram v. Ganesh (1898) 23 Bom. 131 it seems to have been regarded as a matter so far beyond dispute as to dispense with the need for citing authorities, that where a donor takes all the steps in his power to give effect to it, a gift is complete and ha cannot revoke it. And in Mayne's Hindu Law 6th Edn. P. 485, Section 377 it is stated that when the resistance to the donor's attempt to give full effect to the donation arises from a third person, the fact that possession ban not been given is no answer to a suit by the donee against the obstructing party. And though it is further stated by Mayne Hindu Law, p. 485, Section 378 that there must be a transfer of the apparent evidences of ownership from the donor to the donee, it is also stated to be sufficient if the change of possession is such as the nature of the case admits of, and as instances are cited the delivery to the donee of the deed of gift, the possession of the donor in trust for a donee incapable of taking possession as being a minor, &c.;
14. In the present, case the donors never appear to have assumed actual personal possession after the death of their mother for whose benefit the land had been kept joint, and the lower Appellate Court appears to have held that actual possession remained throughout with the father of the plaintiff. There was therefore, no apparent reservation of any kind on the part of the donors. In relinquishing their own claims they did all that was practically necessary and by their registered deed of gift all that they could. It is objected that the mother of the donee was mentioned in that document as his guardian, but it is hardly to be conceived that the father of the donee could be regarded as setting up a possession adverse to his infant son or that the donors in assenting to his continuance in possession understood it to be adverse either to themselves or to the child. The possession of the father having manifestly originated in & mutual understanding which recognized the title of the owners, could not without some overt act become adverse to them or to their disposing power: Dadoba v. Krishna (1879) 7 Bom. 34; and the possession of the father was practically the only mode in which the infant son could accept or exercise possession. The donors never objected and made no attempt to revoke their gift. No division was necessary, as the entirety of the land in question was with the plaintiff's father.
15. It has bean suggested by the lower Appellate Court that the gift was invalid as being the gift of an undivided share, and Vrandavands Ramdas v. Yamunabai (1875) 12 Bom. H.C. 229 vas cited as authority. But that was a case of alienation by a member of an undivided family to an outsider, whereas in the present case the gift is by persons who were not members of an undivided family (the uncles of the plaintiff having previously separated from his father) to the plaintiff, a member of another coparcenary. No consent was necessary to validate the alienation nor was there any one who did or could object. The parties being Hindus, the question that arose in Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan (1889) L.R. 10 IndAp 205 cannot arise here. On these grounds the gift appears unimpeachable.
16. Then it seems to have been held that the plaintiff is estopped from denying his father's title, because he allowed the mortgagee in 1887 to believe that his father was the sole owner and to advance money in that belief. Now as the plaintiff admittedly only attained his majority in 1892, be was but a lad of thirteen in 1887 and cannot be reasonably, regarded as having stood by and looked on in such manner as to estop him from questioning the transaction now. The property never passed from the possession of the father as on behalf of his eon till the date of Exhibit 18--1st January, 1887. And his suit, instituted on 3rd January, 1899, allowance being made for the Christmas holidays, was therefore 27 within time. The suit therefore does not appear to be time barred. It is true that it seems somewhat of a hardship that defendant having advanced money to the father should be deprived by the seen on the point of acquiring a statutory title. But the son baa not been shown to have been to blame and is not liable to lose his title for his father's acts. What other liabilities there may arise out of the transaction it is not necessary to discuss here. The plaintiff's pleader states that he has nothing to urge against an equitable order that the son should recover subject to payment of the proportionate amount of the loan by which he and his father have, benefited.
17. As to the last point, viz., that the auction-purchaser was a necessary party, it seems sufficient to observe that the plaintiff must be left to exercise his own discretion as to joinder of a defendant whose title is not necessarily involved in that of any other party to the suit. The plaintiff is dominus litis: Rajaram Bhagwat v. Jibai (1884) 9 Bom. 152, 155. If he chooses to leave the question that may arise between himself and the auction-purchaser to future settlement, he does so at his own risk. He is not bound to sue every possible adverse claimant in this suit, if none of the parties claim through the auction-purchaser, and for the purposes of this suit it is not necessary to establish title against him.
18. Much has been said as to the effect of Exhibits 51, 52 and 53 in this case, as judgments not inter partes and therefore inadmissible. This, under recent decisions, seems hardly to be a sustainable contention. But the judgments in question seem to add little to what appears from the record in this case, except that they contain a finding of fact that the mortgagee (defendant 2) in this case had actual notice of the deed of gift. It is unnecessary to have recourse to this, however, even for this purpose, for the defendant No. 2 does not appear to have raised the contention that he was a purchaser without notice, nor does it appear that such a contention, if defendant 2 Had set it up, could have prevailed. The defendant 2 preferred to impugn the plaintiff's title on the ground of an alleged detect, which if established would at most have shown that the donors were entitled, and though it is contended that in such case their title would have been time-barred, it would have been difficult to conceive how the possession of defendant 1 could have been adverse to them at a date earlier than, that at which it could have become adverse to the plaintiff. So far as they could they completed the gift, the terms of which they embodied in the registered deed, and they have never attempted any reservation or revocation in their own favour, and a stranger cannot challenge its validity as against the donee.
19. The decree of the lower Appellate Court must be reversed; the appellant appears, however, to be entitled only to the share of his uncles in the entire field, and the decree must, therefore, be limited to one awarding him one-fourth share of the field to be ascertained in execution. Possession to be given to plaintiff on his paying into, Court within six months from the date one-fourth of the amount due on Exhibit 13. The defendant 1 to bear his own costs and defendant 2 to pay plaintiff's costs and bear his own throughout.