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Bai Kushal and anr. Vs. Lakhma Mana - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom452
AppellantBai Kushal and anr.
RespondentLakhma Mana
Excerpt:
hindu law - gift--possession. - - the property being his own absolutely, he had a perfect right to do this, but it is said that he did not complete his gift by delivery of possession. the courts below seem to have been under some slight misapprehension as to what change would be necessary to satisfy the hindu law in a case like the present: under the hindu law, the shastrai in the case at 2 strange's hindu law, 3, says that a gift might be effectively made to an absent person by the proper ceremonies in presence of witnesses, and colebrooke approves this......with herself. each of several co-owners has a right to possess the whole, though subject to the right of co-possession by his fellows. the courts below seem to have been under some slight misapprehension as to what change would be necessary to satisfy the hindu law in a case like the present: a consideration of general principles makes it plain that no outward sign, except a declaration assented to by the donee, was really necessary where the donee already had physical occupation of the object of the gift. that a complete change of legal right may take place without any change in the actual possession, may be seen from the case of nawab malka jahan sabba v. the deputy commissioner of lucknow l.r. 6 indap 63. reference may be made to gamble v. bholagir bom. h.c r 146 a.c.j. also. under.....
Judgment:

West, J.

1. It appears in this case that Ruda, the separate owner of certain lands, having become old and somewhat incapacitated for ordinary affairs, called in his daughter Kushal, who for some years carried on the cultivation of the fields composing the paternal estate. It is admitted she had physical detention of the lands, though on her father's account. In this state of things Ruda, the father, executed, a deed of gift, by which he bestowed all his land on Kushal and her four sisters. The property being his own absolutely, he had a perfect right to do this, but it is said that he did not complete his gift by delivery of possession. As Kushal, however, already had the physical detention of the lands, it was not possible to do more than convert this into possession and Ruda, in his deed, says: 'I have given you possession.' This was, on its face, an act divesting himself of the possession, and transferring it to Kushal. He could not retain possession against his will, and here was a public and registered declaration that he no longer wished to be possessor. Unless Kushal then refused to hold as her own and her sisters' what she had hitherto held as her father's by merely derivative possession, the physical detention was supplemented by the requisite volition, and holding for herself she from that moment had complete possession by a change of intention, giving a new character to her physical act. Nor would this be the less so because her sisters had joint rights with herself. Each of several co-owners has a right to possess the whole, though subject to the right of co-possession by his fellows. The Courts below seem to have been under some slight misapprehension as to what change would be necessary to satisfy the Hindu law in a case like the present: a consideration of general principles makes it plain that no outward sign, except a declaration assented to by the donee, was really necessary where the donee already had physical occupation of the object of the gift. That a complete change of legal right may take place without any change in the actual possession, may be seen from the case of Nawab Malka Jahan Sabba v. The Deputy Commissioner of Lucknow L.R. 6 IndAp 63. Reference may be made to Gamble v. Bholagir Bom. H.C R 146 A.C.J. also. Under the Hindu law, the shastrai in the case at 2 Strange's Hindu Law, 3, says that a gift might be effectively made to an absent person by the proper ceremonies in presence of witnesses, and Colebrooke approves this. It would not be possible to complete such a gift by delivery of possession: in the particular case delivery was made to a person in trust for the donee. The donee's assent was probably assumed, and, under the English law, assent to a benefit has, in some cases, been presumed where dissent was not expressed Thompson v. Leach 3 Lev. 284 quoted by Lord Mansfield in Tuyolr v. Horde 1 Bur 124; per Abbott C.J., in Townson v. Tickell 3 B. & all 37.

2. The Courts below should find with reference to the foregoing observations:

1. Whether Kushal and her sisters, or any of them, declined to accept the gift made by their father, or was unaware of its having been made down to the time of his death?

2. Whether Kushal, acting on the resignation contained in the deed of donation by her father, held the lands embraced therein from that time, or from any time, down to the moment of his death either as her own individually or as hers jointly with her sisters?

3. Whether her possession having been once completed by the addition, to her physical detention, of a mutual assent, she ever transferred such possession back again to her father?

4. Whether this was done with or without the assent of her sisters, or any of them; and

5. With what legal consequences?

3. Three of the sisters--Jeyba, Rupa, and Kadvi--are dead. Jeyba's husband claims no right, and she has left no children. Rupa's only son, Guman, is dead, and no one seems to have come forward to represent him. Kadvi's daughter, Oomed, withdrew from the appeal. With reference to these circumstances the Courts below should determine:

6. Whether the deed is to be construed as making a gift to the daughters of the donor jointly, or to them severally, or as tenants-in-common, or in what mutual relation, and with what consequences on the claim of the plaintiffs.

4. We direct that the findings be forwarded to this Court within two months. Further proceedings meanwhile adjourned. Fresh evidence may be received on the new issues.


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