1. The question in this appeal is, whether the deed of gift passed by the plaintiff-appellant Annu and her deceased mother-in-law Bai Tanu in favour of Haribai, the deceased wife of the defendant Shripati, is valid. The following genealogical tree shows the relationship of the parties:-
Bhiku = Tanu---------------------------------------------------------| | |Anu = Mukunda Tukaram Haribai = Shripati
2. The property in suit originally belonged to Bhiku, who died leaving two sons, Mukunda and Tukaram and a daughter Haribai. On his death, it was enjoyed by the joint Hindu family consisting of his two sons. Mukunda died first, and Tukaram twelve days later, on August 14, 1907, the estate then vesting in Tanu as Tukaram's heir. On November 23, 1910, Tanu and Annu passed a deed of gift now in question in favour of Haribai. The important recitals of the deed of gift are as follows :-
The husbands of both of us are dead ; neither of us have any children. You are always looking after us and we are confident you will continue to look after us, We have no other heirs. Remembering all these things we pass a deed of gift. The property of this description has been handed into your possession to-day. You and your heirs will continue to enjoy it. Neither we nor any of our heirs have any interest left in it now.
Possession of the property was given to Haribai on the date of the deed, and she continued in enjoyment till her death, the property being entered in her name in the record of rights.
3. In 1917, Haribai died and a year later Tanu. The present dispute arose between Annu and the present respondent Shripati, husband of Haribai. Annu sued to recover possession on the ground that she was the heir on the death of Haribai and that the deed of gift was void and had been obtained from her by misrepresentation. The defendant-respondent supported the deed and denied misrepresentation. Both the lower Courts held that misrepresentation was not proved. The trial Court held that the deed of gift was void on the ground that it was a transfer of a spes successionis under Section 6 of the Transfer of Property Act. In appeal, the learned Assistant Judge held that Annu's consent was an election which caused the present suit not to be maintainable and dismissed the suit. The plaintiff appeals.
4. It is argued for the appellant that the consent of a person who is not the next reversioner cannot act as an election and that the deed of gift to Haribai was void, the transfer being a spes successionis under Section 6 of the Transfer of Property Act. It is contended for the respondent that on the authority of Akkawa v. Sayadkhan Mithekhan ILR (1927) 51 Bom. 473, 29 Bom. L.R. 380 the appellant consented and is bound by her election.
5. No express issue was raised in the trial Court and there is no finding as to whether the property comprised the entire property of Bhiku. If it did, the deed of gift would be a valid and lawful acceleration, as was apparently conceded in argument in the trial Court; and the lower appellate Court has also treated the case on the footing that the donor remained in possession of some property, and that the property gifted was only a part of the estate of Bhiku. It is on this assumption that I propose to deal with this appeal.
6. Section 6 of the Transfer of Property Act has, in my opinion, no application, The gift was by Tanu with the consent of Annu. To all intents and purposes, the argument is identical with the argument which succeeded in Bai Parvati v. Dayabhai Manohharam ILR (1919) 44 Bom. 488, 22 Bom. L.R. 704. Macleod C. J. and Shah J. who decided that case distinguished it in a subsequent decision in Basappa v. Fakirappa ILR (1921) 46 Bom. 292, 23 Bom. L.R. 1040, and held that the gift made by a Hindu widow of a portion of her husband's property with the consent of the next reversioner was valid on the principle of estoppel as against the particular reversioner, who consented to it. The authority of Bai Parvati v. Dayabhai Manchharam must be taken to have been still further weakened by the decision of the Full Bench in Akkawa v. Sayadkhan, affirming the principle in Basappa v. Fakirappa not indeed on the ground of estoppel on which it actually proceeded, but on the ground of election referred to by their Lordships of the Privy Council in Rangasami Gounden v. Nachiappa Gounden (1918) L.R. 46 I.S 72, 21 Bom. L.R. 640. The fact that in this case the gift was to the next reversioner Haribai with the consent of the other reversioner Annu is not, in my opinion, sufficient to render the principle of election by a reversioner any the less applicable-a view which derives support from a more recent decision of their Lordships of the Privy Council in Ramgowda Annagowda v. Bhausaheb (1927) L.R. 54 I. S 396, s.c. Bom. L.R. 1380. To all intents and purposes this was a family arrangement between the only three women who composed the family, Tanu the actual person in possession making the gift and placing the next reversioner Haribai in possession with the consent of the only other reversioner Annu, Haribai on her part consenting to maintain Tanu and Annu. There is no allegation in the present claim that Haribai during her life-time or on her death the present respondent failed to maintain Annu. The same view in regard to election is taken by the Full Bench of the Allahabad High Court in Fateh Singh v. Thakur Rukmini Ramanji Maharaj ILR (1923) All. 339 and it is in consonance with the earlier view of their Lordships of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) L.R. 35 IndAp 1, 9 Bom. L.R. 1348 and in regard to the power of a more remote raversioner in Rani Anund Koer v. The Court of Wards . To put it shortly, it was open to the appellant to object to the deed of gift before or at the time it was made. On the contrary, she gave her consent to it when Tanu made it and allowed it to remain and presumably obtained maintenance under it from Haribai for fifteen years. Her own election precludes her from maintaining the present suit. The appeal fails and is dismissed with costs.