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Meherali and ors. Vs. TajudIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom156
AppellantMeherali and ors.
RespondentTajudIn and ors.
Excerpt:
.....vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - 135 the privy council point out that 'the hindu texts, with one not very clear exception, relate to intended gifts which it is contemplated that the donor may take back until they are perfected, and appear to rest on a principle which has nothing to do with the feudal rules, and the european analogy to which is rather to be found in the cases relating to voluntary contracts or transfers, where, if the donor has not done all he could..........of which distinctly lays down that in a gift, solsin is necessary and absolutely indispensable to the establishment of proprietary right. in the hedata, vol. ill, p. 291, we find it laid down: 'gifts are rendered valid by the tender, acceptance, and seizin. the prophet has said 'a gift is not valid without seizin.' so also if the thing given be pawned to, or usurped by, a stranger.' we think this statement of the law of gifts is not consistent with any other conclusion than that delivery and seisin are of the essence of a gift, and that, therefore, no right of any description passes without them, as must be the case when the donor is not himself in possession. we think, therefore, that notwithstanding anything to be found in kali das mullick v. kanhya lal pundit, the case of mohinudin v......
Judgment:

Charles Sergent, C.J.

1. In Kali Das Mullick v. Kanhya Lal Pundit 11 I.A. . 232 : I.L.R. S.C. 11 Cal. 135 their Lordships of the Privy Council say: They 'see no reason why a gift or contract of sale of property, whether moveable or immoveable, if it is not of a nature which mates the giving effect to it contrary to public policy, should not operate to give' to the donee or purchaser a right to obtain possession,' and they add: 'This appears to be consistent with Hindu law.' The question here, however, is, whether it is consistent with Mahomedan law.

2. In Mohinudin v. Manchershah I.L.R. 6 Bom. 650 the question arose and was decided in the negative, on the ground that by Mahomedan law a gift by a person not in possession is null and void. In Kali Das Mullick v. Kanhya Lal Pundit 11 I.A. 233 : I.L.R. S.C. 11 Cal. 135 the Privy Council point out that 'the Hindu texts, with one not very clear exception, relate to intended gifts which it is contemplated that the donor may take back until they are perfected, and appear to rest on a principle which has nothing to do with the feudal rules, and the European analogy to which is rather to be found in the cases relating to voluntary contracts or transfers, where, if the donor has not done all he could to perfect has contemplated gift, he cannot be compelled to do more.' It appears to us that these observations have no application to the texts of Mahomedan law, the language of which distinctly lays down that in a gift, solsin is necessary and absolutely indispensable to the establishment of proprietary right. In the Hedata, Vol. Ill, p. 291, we find it laid down: 'Gifts are rendered valid by the tender, acceptance, and seizin. The prophet has said 'a gift is not valid without seizin.' So also if the thing given be pawned to, or usurped by, a stranger.' We think this statement of the law of gifts is not consistent with any other conclusion than that delivery and seisin are of the essence of a gift, and that, therefore, no right of any description passes without them, as must be the case when the donor is not himself in possession. We think, therefore, that notwithstanding anything to be found in Kali Das Mullick v. Kanhya Lal Pundit, the case of Mohinudin v. Manchershah was rightly decided and should be followed. We must, therefore, reverse the decree of the Court below, and dismiss the plaint, with costs on plaintiffs throughout.


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