1. This is an appeal against the judgment and decree of the Joint Subordinate Judge of Ahmedabad dismissing a suit brought by the appellant to recover the sum of Rs. 5,300 from the respondent who is the appellant-plaintiff's step-mother. The plaintiff's case was that he and his father Tribhovandas, husband of the defendant-respondent Bai Dahi, were members of a joint family and possessed joint family properties and that a sum of Rs. 5,000 forming part of the joint family money was deposited by him in the Saraspur Mills, Limited, of Ahmedabad on April 30, 1932. It is an admitted fact that this money was deposited and that it was deposited in the joint names of the plaintiff's father Patel Tribhovandas Jamnadas and Bai Dahi his wife. A receipt (exhibit 95) given by the company contained these words: 'Tribhovandas Jamnadas is the owner of the money. After his lifetime (which means after his death) Bai Dahi is to get the same.' Tribhovandas died on September 20, 1932, and on February 22, 1934, the plaintiff sued Bai Dahi to recover the amount of the deposit with interest. At that time the money was still with the Saraspur Mills, Ltd., and that company was made a defendant to the suit, and an interim injunction was given prohibiting the company from paying over the money to Bai Dahi. However, on April 27, 1934, this interim injunction was discharged, and the money which amounted with interest to Rs. 5,300 was paid to Bai Dahi on security being given by her. The plaint was then amended, and defendant No. 2 was struck off from the record. The plaintiff seeks to recover the money on the ground that it belongs to him after the death of his father.
2. The case set up by the defendant was that the plaintiff had separated from his father about twenty years before the suit and had no interest in the property which his father had at the time of his death. In any case, she claimed to be entitled to the amount of the deposit receipt under the terms of exhibit 95.
3. An issue was raised as to whether the plaintiff was divided from his father for the past twenty or twenty-two years as alleged by the defendant. But as regards this the parties agreed to be bound by the decision on the same issue which had been raised in another suit No. 1019 of 1938 brought by Bai Dahi for maintenance. The finding was that Tribhovandas was not separate from his son Keshavlal at the time of his death. In order to succeed in his suit it was however necessary for the plaintiff to show not only that he was joint with his father but that the money claimed in the suit was joint family property. In the maintenance suit the Judge who decided the case expressed the opinion that all the property which Tribhovandas had, including the amount of this deposit, must be deemed to be joint. But in fact there was no issue on that question which did not really arise in the maintenance suit. In the present suit the question undoubtedly does arise and must be determined, and an issue ought to have been framed. Possibly the parties may have been under the impression that the judgment in the other case would dispose of the point, or it may have been simply overlooked. In any case this essential issue has not been raised. The learned trial Judge seemed to think that as the plaintiff did not in so many words allege in the plaint that there was an ancestral nucleus of joint family property, the suit might be liable to dismissal. We think however that it would have been impossible to take that course. It was the duty of the Court to frame the necessary issues, and although it is perfectly true that there is no presumption that a joint family possesses any property and no presumption that any particular item of property is joint family property, the plaintiff having definitely alleged that this deposit was joint family property an issue ought to have been raised, and the suit could not be dismissed.
4. On the construction of the deposit receipt, the learned Judge took the view that Tribhovandas had made a gift of the money to his wife and that therefore the plaintiff was not entitled to recover it even on the assumption that it was joint family property. He relied on the rule of Hindu law that a Hindu father may make a gift of joint family moveables to his wife within reasonable limits, and he thought that the transaction in suit satisfied those conditions. The suit was accordingly dismissed, and the plaintiff has appealed.
5. If we had found it possible to agree with the learned trial Judge on the question of the legal character of this transaction, we might have avoided having to remand the case. But we think he was mistaken in his construction of the document. The appellant naturally relies on the decision of the Privy Council in Guran Ditta v. Ram Ditto (1928) L.R. 55 IndAp 235. It was held there that the deposit by a Hindu of his own money in a bank in the joint names of himself and wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife, and that there is a resulting trust in his favour in the absence of proof of a contrary intention, there being no presumption of an intended advancement in favour of a wife. It was pointed out in the judgment of their Lordships that the general principle of equity applicable both in this country and in India is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. There is an exception to this rule in English law, and a gift to a wife is presumed where money belonging to the husband is deposited at a bank in the name of a wife, or where a deposit is made as in the present case in the joint names of both husband and wife. But their Lordships further pointed out that this exception has not been admitted in Indian law and that there is no presumption of an intended advancement as there is in England, and consequently the general rule applies. The ownership of the money deposited under these circumstances depends on the source from which it came. It is common ground here that Bai Dahi had no interest in the money at the time it was deposited. It was 'either Tribhovandas' property or the joint property of himself and his son. The Privy Council case therefore makes it perfectly clear that the mere fact that a deposit was made in the name of Bai Dahi does not show that a gift to her was intended.
6. The learned trial Judge apparently thought that this case could be distinguished on the ground that the words 'payable to either or the survivor' are not in the deposit receipt with which we are concerned. It does not appear however that their Lordships of the Privy Council attached particular importance to these words, and undoubtedly it is not upon that ground that the decision was based. The fact that Bai Dahi's name appeared in the deposit receipt not being any evidence to prove a gift the defendant has got to prove it otherwise, and for that purpose all she has to rely upon is the recital in the receipt that she was to get it on the death of her husband. But those words obviously indicate a bequest rather than a gift of the money, and it is admitted that a Hindu father has no power to make a will in respect of joint family property.
7. Both in the Court below and in the argument before us reliance has been placed on Section 19 of the Transfer of Property Act which provides:--
Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
8. But this assumes that there has been a transfer of property, and when the question is whether there has been a legal gift of money, we have to have regard to the provisions of Sections 122 and 123 of the Act. The former section says:
'Gift' is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
9. So that clearly it is essential that there should be a transfer of the ownership of the property to the donee during the lifetime of the donor. Then it is provided in Section 123:--. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
10. Mr. Thakor who appears for the respondent admitted that it is necessary to show that there was an intention on the part of Tribhovandas to give his wife an immediate interest in the money, and he argued that it may be assumed that he had that intention because he said nothing about the money being paid to either or the survivor, and on the other hand did provide that on his death Bai Dahi was to get the money. But as I have said already, the latter recital serves rather as a bequest than as a gift, and the fact that Tribhovandas rather went out of his way to say that he remained the owner of the property during his lifetime is very difficult indeed to reconcile with the theory that he intended to give his wife an immediate interest. On the question of construction, we think there can be no doubt that there was no gift of the money, and it is also clear that there is no such delivery of the property as is required to make a valid gift.
11. In a somewhat similar case, Mrs. T.C. Paul v. Nathaniel Gopal Nath (1931) 29 A.L.J. 417, where a husband made a fixed deposit of money in a bank repayable to himself or his wife or survivor, it was held that this involved no delivery and was not therefore a gift to the wife. This case is cited by Sir Dinshah Mulla in his commentary on Section 123, and the learned author suggests that if the deposit receipt had been given to the wife, that would have been proof of a gift--meaning no doubt that that would have been a sufficient delivery to comply with the section. In this case Bai Dahi has neither alleged nor proved that the deposit receipt was given to her, and even if it had been, the recital of Tribhovandas' ownership combined with the recital that it was only after his death that Bai Dahi was to get the money, makes it impossible, we think, to hold that a gift was intended.
12. We are bound to hold therefore that the plaintiff is entitled to succeed in this case, presuming he is able to show that the family consisting of himself and his father possessed joint family property which included the sum of Rs. 5,000, which is the subject of this litigation. For the determination of that question we must send the case back to the trial Court to record evidence and a finding. The parties are given liberty to adduce oral and documentary evidence. The finding should be returned within two months. The costs will abide the result.
13. Case sent back.