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Hilalsing Govinda Patil Vs. Udesing Vithal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 262 of 1933
Judge
Reported inAIR1938Bom125; (1937)39BOMLR1217; 173Ind.Cas.963
AppellantHilalsing Govinda Patil
RespondentUdesing Vithal
Excerpt:
hindu law-gift-construction of deed of gift-gift in favour of widow-absolute estate-transfer of property act (iv of 1882), sections 41, 122, 8-ostensible owner, sale by-real owner whether bound by such sale.;defendant no. 1 was adopted by the senior widow with the assent of the junior widow of a person and the widow of his brother. to each one of the three widows the defendant made gifts of property : the one in favour of the adopting widow was stated to be for maintenance, and those in favour of the other two were in perpetuity or from generation to generation. the junior widow enjoyed the gifted lands as long as she lived, and when she died she bequeathed them by will to plaintiff who was her paternal uncle. the lands were on her death entered in the name of defendant no. 1 in the.....thakor, j.1. this is an appeal against the decree of the first class subordinate judge of jalgaon, dated july 31, 1933, in suit no. 493 of 1931. the suit was brought by one hilalsing govinda to obtain possession of the properties. in suit consisting of two survey numbers, and mesne profits at rs. 250 per year from the date of the suit. there were three defendants, the first defendant was the person in possession of the whole or part of those properties, having been in possession of the same since the death of one prabhabai, who was his junior adoptive mother. the second defendant was a purchaser under a sale-deed, dated november 19, 1929, passed to him by defendant no. 1, of four acres and one guntha, out of survey no. 105, for an amount of rs. 7,000 for which he had obtained a decree.....
Judgment:

Thakor, J.

1. This is an appeal against the decree of the First Class Subordinate Judge of Jalgaon, dated July 31, 1933, in Suit No. 493 of 1931. The suit was brought by one Hilalsing Govinda to obtain possession of the properties. in suit consisting of two survey numbers, and mesne profits at Rs. 250 per year from the date of the suit. There were three defendants, The first defendant was the person in possession of the whole or part of those properties, having been in possession of the same since the death of one Prabhabai, who was his junior adoptive mother. The second defendant was a purchaser under a sale-deed, dated November 19, 1929, passed to him by defendant No. 1, of four acres and one guntha, out of survey No. 105, for an amount of Rs. 7,000 for which he had obtained a decree against defendant No. 1. The third defendant was also a purchaser from defendant No. 1 under a sale-deed, dated December 18, 1929, under which he purchased three acres and thirty gunthas out of the same survey No. 105 for an amount of Rs. 2,500 for which he also appeared to have obtained a decree against defendant No. 1.

2. The original owner of the properties was one Vithal Bhagwan, who died on May' 13, 1922, leaving behind him two widows Dhankorbai, the senior, and Prabhabai, the junior, and also a brother's widow by name Kesharbai. On July 21, 1922, it is common ground that defendant No. 1 was adopted by the senior widow with the consent of the other two ladies, who joined in the deed of adoption. On July 23, 1922, by exhibit 76 defendant No. 1 purported to make a gift of one survey No. 105 in favour of the junior widow Prabhabai, which was confirmed by another document, dated November 13, 1922 (exhibit 33), by which defendant No. 1 gifted away two survey Nos. 105 and part of 107 to his junior mother Prabhabai, as minor represented by a guardian. There is no dispute as to the execution of these documents.

3. There are two other documents, which the parties and the learned Judge have referred to, one dated October 14, 1922 (exhibit 70) by defendant No. 1 in favour of Dhankorbai of certain lands, and the other dated November 11, 1922, by defendant No. 1 in favour of Kesharbai (exhibit 71). We are not in this case directly concerned with the gifts to Dhankorbai or Kesharbai; but they have been alluded to in the arguments at the bar in order to help the construction or interpretation of the other two documents in favour of Prabhabai. It may be stated that Kesharbai in her turn has given those properties, which she received in gift, to her daughter Sakhubai, a gift which is not up to now called in question by defendant No. 1, and which, as his deposition would show, he does not feel inclined to call in question' also.

4. Prabhabai got possession of the properties as found by the lower Court, and enjoyed the rents thereof by taking rent-notes-defendant No. 1 himself at the later stages figuring as a tenant of hers without a rent-note and sub-letting the lands to another. She died on August 24, 1927, leaving a will (exhibit 84), dated August 13, 1927, purporting to have been executed by her in her maternal uncle's house at Pimprala, where she appears to have gone during her illness. The plaintiff, who is a paternal uncle of Prabhabai, claims the lands in suit, which are identically the lands gifted to Prabhabai under exhibit 33 by defendant No. 1, under this will, he being entitled to them as a legatee or as a devisee under the will (exhibit 84).

5. The defendants challenge both the genuineness of the above will as well as its validity, and also contend that Prabhabai was not competent to make the will, because the properties gifted to her were not gifted to her absolutely but were gifted to her for her own enjoyment and maintenance during her lifetime; so that defendant No. 1 became the owner of them on her death in 1927. Defendants Nos. 2 and 3 have a further contention to raise, and they say that they are bona fide purchasers for value from defendant No. 1, who was in possession of the properties so sold to them, ostensibly as an absolute owner, with the consent, express or implied, of the present plaintiff, who now claims to be a devisee under the will.

6. The learned Judge framed several issues appearing at p. 2 of the print, and found on issue No. 2 that the will relied on by the plaintiff was proved to be the last will of the deceased Prabhabai. On issue No. 3 he found that Prabhabai was incompetent to make the said will, the reason having been given in his finding on issue No. 1 wherein he held that the gift-deed (exhibit 33) gave Prabhabai only a life-estate. On issue No. 4 he found that defendants Nos. 2 and 3 were bona fide purchasers for value, meaning thereby, that they had purchased the properties in good faith from defendant No. 1 who had been put forward as the ostensible owner by the implied or express consent of the present plaintiff. The learned Judge accordingly on these findings dismissed the plaintiff's suit, directing him to pay the costs of defendant No. 1 (one set) and also the costs of defendants Nos. 2 and 3, as provided in the decretal order.

7. The plaintiff appeals.

8. Defendant No. 1 and also defendant No. 3, who are represented here, support the decree on the ground that the will relied upon by the plaintiff has not been proved to be the last will of the deceased Prabhabai, and is also not valid.

9. The question that I shall deal with first is the question recorded in issue No. 2 as to the proof of the will, because the respondents' learned advocates contend that the will has not been proved. Now, on that point we have the evidence of the plaintiff himself, supported by the evidence of the writer (exhibit 67), and an attesting witness (exhibit 68). There were also other attesting witnesses who have not been examined, and whether they are dead or alive is not known. They are Mahadev Lalsing, Ragho Raisingh and Nateshwar Gopal. The will was executed at the place of the maternal uncle of the deceased Prabhabai, where she is proved to have gone during her illness, and it was executed several days before she actually died. The will was immediately after execution handed over to the plaintiff, who became the devisee under it. Now, defendant No. 1 belongs to Talai, a different place altogether from Pimprala where the will was executed and from where apparently all the witnesses are drawn. In the cross-examination of the witnesses there is not the slightest indication to suggest that the witnesses had any enmity against defendant No. 1, or any prepossession in favour of the plaintiff, who in his turn belongs to a different place Khedgam. The learned Judge, who had the witnesses examined before him, saw no good ground for disbelieving the writer and the attestor of the will. He believed them, and held the will proved on their testimony.

10. The only circumstance that was pressing me, before the argument began as regards the will, was the reason why it was not put forward immediately after the death of Prabhabai before the revenue authorities, and why it was not relied upon until the date of the present suit. Another suggestion appearing from the cross-examination of witnesses is that the gift-deed is not referred to in the will. But these two circumstances are not, in my opinion, sufficient to enable us to say that the learned Judge's view, that the will was proved, and that it was made by the deceased in a sound disposing state of mind, is incorrect. Having had the evidence of these witnesses read over, we see nothing in it which should induce us to differ from the view of the learned Judge.

11. Another argument not specifically embodied in the written statement and also not embodied in the issues relating to the will, is that the will has not been duly proved, as the witnesses who have attested it have not proved that it was executed in the manner required by Section 63 of the Indian Succession Act. Defendant No. 1's pleader's cross-examination in the lower Court has brought out facts, particularly in the evidence of the attesting witness Ram-singh Jamu, which entitle us to hold that both the ingredients required by Section 63 have been fulfilled, and that the new point started in appeal ought not to prevail. We, therefore, hold, agreeing with the learned Judge, that the will is proved to have been duly executed, and is valid.

12. The question of the competence of the widow to make the will next arises, and that in its turn rests on the interpretation that we put on the gift-deed (exhibit 33), which is the basis of her title. The respective contentions of either side have been noted by the learned Judge, who came to the conclusion recorded by him in paragraph 20 of his judgment as follows:-

In view of the evidence adduced by defendant No. 1 and supported by the general trend of the surrounding circumstances and from the interpretation of the deed of gift, exhibit 33 (discussed in paragraphs 11 and 16 in particular) I hold it not proved that the gift to Prabhabai conveyed any absolute title or any power of alienation to her. I find on issue No. 1 accordingly and that the deed of gift conveyed only a life-interest to her.

It is material to note that the learned Judge came to this conclusion not only on the interpretation of the will or its terms in the light of the surrounding circumstances, but allowed oral evidence to be led on which he appears to have relied to show that there were certain words, ' in lieu of maintenance ' which do not in fact find a place in the gift-deed, but which on the evidence of defendant No. 1 should have found a place therein. It is, therefore, that he refers to the evidence adduced by defendant No. 1 in support of his conclusion.

13. It has been contended before us by the appellant's learned advocate, Mr. Gajendragadkar, and conceded by the respondents' learned advocates that the oral evidence allowed to be led so as to introduce words, which do not exist in the will, should not have been allowed. The learned Judge has also relied in support of his finding on several other documents, viz., the two gift-deeds in favour of the other two ladies (exhibit 70 in favour of Dhankorbai and exhibit 71 in favour of Kesharbai). Apparently it was the plaintiff's pleader who invited the learned Judge to rely upon these documents or to refer to them in interpreting the gift-deed (exhibit 33). It appears from paragraph 12 of the judgment that the learned Judge has, apart from the interpretation put upon the will itself, also sought the aid of and referred to other documents. The respondents' learned advocates also have not in this Court objected to the reference to other documents in the interpretation of exhibit 33; so that at the bar here it seems to be common ground that these documents could be referred to for the purpose of properly interpreting the gift-deed (exhibit 33). We have, however, grave doubts as to the course adopted. It is admitted that so far as the adoption deed is concerned there is nothing in it to suggest that these two or three documents came to be executed as a result of an arrangement embodied in the adoption deed. Therefore it is difficult to treat all the documents as part of the same transaction.

14. It is also not contended that these documents came to be executed at the same sitting, because the dates which each of them bears are different dates. It does not seem reasonable, therefore, to refer to the other documents and to interpret them in order to arrive at the proper interpretation of exhibit 33. That is particularly so, as it is admitted that so far as exhibit 71 is concerned, it is written by a different writer, and not by the same writer, and it seems to have been apparently conceded in the lower Court by defendant No. 1's pleader that one of those documents, namely, exhibit 71, the gift-deed in favour of Kesharbai, was an absolute gift. The gift-deed (exhibit 33) is dated November 13, 1922. Kesharbai's document (exhibit 71) is dated November 11, 1922. If it is admitted that these two documents do not bear the same interpretation, it is difficult to see how other documents, one executed a month before, and another executed three months before, should be first interpreted in order to support or arrive at the interpretation of exhibit 33. On slightly different facts the decision in Nurjahan v. Faghfur (1905) 7 Bom. L.R. 850, P. c holds otherwise. The head-note of the case reads as follows:-

The construction placed on one document could not be used for the purpose of ascertaining the meaning of a later document executed by the same person, where the later document does not embody or refer to the earlier document; the two documents are not in any sense parts of one transaction and they are not even contemporaneous documents; and the language of the two documents is entirely dissimilar.

The passage from which the head-note is extracted will be found at p. 853 of the report.

15. The Privy Council have also deprecated the practice of construing a grant in the light of the negotiations or correspondence preceding it. The latest decision in which their Lordships affirmed this principle, which they had already laid down before, is the case of Wadia V. Secretary of State for India . The previous decisions to the same effect are Durga Prasad Singh V. Rajmdra Narayan Bagchi and Abdullah Khan v. Basharat Husain . The negotiations or correspondence preceding a grant or contract have thus been ruled out as not being legitimate aids for the construction of documents. The body of evidence, which is allowed to be led in the present case, and on which the learned Judge seems to have relied, has, therefore, to be disregarded before the document (exhibit 33) is interpreted. I agree that surrounding circumstances can be seen, according to Privy Council decisions, in order to arrive at an interpretation of a document. But the expression ' surrounding circumstances' must be strictly limited to the state of facts, as they existed, and. under which the document came into existence or came to be executed. No oral evidence relating to the intention of the parties could be referred to under the guise of surrounding circumstances. As the learned Judge's finding on issue No. 1 is based on materials, which, according to our view, are not legitimate materials to be used in interpreting exhibit 33, his rinding loses much of its weight, and we proceed, therefore, to interpret exhibit 33 ourselves.

16. Exhibit 33 has been read out to us in the vernacular. The material words which can be stated to be the dispositive words are these.

17. The gift-deed in English is as follows : It is described at the top as bakshis patra, without any qualification whatever. It is dated November 13, 1922. It begins by saying-

I hereby give this deed of gift in writing. You have taken me; in adoption. Remembering the said obligation or favour (of yours) I (give you) my ancestral immovable property belonging to me and in my possession.

Omitting the reference to the lands it proceeds as follows :-

I have given you in your possession by way of gift the two lands...in recognition of your obligation in having adopted me. You should perpetually enjoy the same happily. You should enjoy the same as you like. You will not be responsible for the loss that may be caused by me or by my bhaubhands claiming any rights or filing suits etc. They (the lands) have not been sold. If found (to have been sold) I am responsible for the same. I am liable for some ancestral as well as personal debts. There is no charge on these survey numbers on account of the same. If placed I am responsible for the same. This gifti-deed is executed by me when I am not drunk and 'with my full knowledge and of my free will.

Apparently there are no words of limitation in the gift-deed, and if the words bakshis patra and bakshis read with the clause ' you should perpetually enjoy the same happily and you should enjoy the same as you like ' are literally construed, there can be no doubt that the wording of the deed, that is to say, the words in which the gift-deed is couched indicate that the intention was to give an absolute interest to the donee.

18. The only possible difficulty that I had in my mind at some stages of the hearing was as to whether the words 'may not be. treated as being words of limitation or restriction controlling the effect of the gift, which prima facie would be an absolute gift.

19. Another circumstance that was weighing with me for sometime was the effect of certain authorities wherein some emphasis has been laid on a decision of their Lordships of the Privy Council in Mahomed Shumsoot V. Shewukram the effect of which was understood to be that in the case of gifts or will in favour of Hindu women some sort of a presumption arises that the donor does not usually intend to confer an absolute interest on a Hindu widow or female. On a consideration of the subsequent authorities, however, I have come to the definite conclusion that their Lordships' decision in Mahomed Shumsoops case has no such effect and that no such presumption ought to be raised even though the gift is in favour of a Hindu female.

20. Mr. Gajendragadkar for the appellant has drawn our attention to the passage in Sir Dinshah Mulla's Book on the Principles of Hindu Law, where this subject has been dealt with at p. 466, and where the authorities on both sides have been collected. In one of the authorities therein referred to, namely, Sasiman Chowdhurain V. Shib Narayan Chowdhury the following observations occur (p. 32) :-

The following decisions, which it has been contended should guide' their Lordships in construing this will, have been cited in argument at the Bar. Their Lordships may observe that it is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in another case. Their Lordships will briefly refer to the decisions which have been cited in the order of their dates.

With due respect I agree that the decisions based on the language in one will or document cannot ford any sure guidance in construing another will or document written in a different language and made under different circumstances, and that ultimately after being guided by the principles laid down in the various decisions, it will be the duty of the Court to construe a particular document before it on the words used in the document itself, considered in the light of surrounding circumstances.

21. Another decision to which reference was made by the respondents' learned advocate is the one in Jagmohm Singh v. Sri Nath : (1930)32BOMLR1609 Sir George Lowndes, who delivered the judgment in that case, says as follows (p. 1610) :-

In this appeal the Board have again to consider a question which has been discussed under different guises in a number of cases within the last few years, viz., whether, under Hindu law, a woman taking immoveable property by gift from her husband has power to alienate it.

The most recent decision on the subject is in Shalig Ram V. Gkaranjit Lal : (1930)32BOMLR1578 which cited and followed the judgment of Lord Buckmaster in Bhaidas Shivdas V. Bai Gulab (1921) L.R. 49 IndAp 1 : 24 Bom. L.R. 551. Reference was also made to Ramchand Rao V. Ramchandra Rao in which Lord Buckmaster made certain remarks explanatory of the decision in Surajmani V. Rabi Nath Ojha another case in which a widow's power of alienation had been called in question, but their Lordships have no doubt that these remarks were not intended to qualify in any way the pronouncement in Bhaidas Shivdas v. Bai Gulab. There is also an exhaustive judgment of Sir John Edge in Sasiman Chmvdkurain V. Shib Narayan Chowdhury to which Lord Buckmaster was a party and which was heard a few days only after Bhaidas Shivdas' case.

Under these circumstances their Lordships feel that the doctrine upon which the decision of the present appeal depends is so well established that no further discussion of the authorities is required.

22. Mr. Gajendragadkar referred incidentally to the decision in Bhaidas Shiv-das v. Bai Gulab, and the decision in Shalig Ram v. Charmjii Lal (1930) L.R. 57 IndAp 282 : 32 Bom. L.R. 1578 which were followed in the case I have just quoted above. He also referred to the decision in Bishunath Prasad Singh V. Chandika Prasad Kumar . As I have already stated, the decisions can only afford a guide so far as the principles are concerned. But I.will refer to the decision in Bishunath Prasad Singh v. Chandika Prasad Kumari, in particular, because it was contended at the bar that the document in the present case was executed with a view to provide for the maintenance of the junior widow, and that the words are susceptible of a construction which would suggest that the deed was made only with a view to make a provision for maintenance and therefore conferred a limited estate. It is in connection with that argument that the decision in Bishunath Pirasad's case cited by Mr. Gajendragadkar may have some relevance, because that decision and another decision referred to therein show that even where the purpose of making a grant or transferring property is the provision for the maintenance of a widow, the grant can be absolute. The words used in that will were no doubt different. The words used were :

I, the executant, have...made a gift of the entire abovementioned property to my daughter-in-law for her support and maintenance. I declare and give it in writing that the said Musammat should remain absolute owner of this property under this deed of gift and pay the Government revenue.

I am using this judgment only for the purpose of showing that even where the purpose or object of a gift is the provision for maintenance, the gift may still confer an absolute estate. That was so held by their Lordships of the Privy Council also in the case of Jogeshwar Narain Deo v. Ram Chund Dutt where the words were :

I give to you...and the son born of your womb...for your maintenance.

It is true that in this decision there were other words also. But Mr. Gajendragadkar would be entitled on this decision to urge, and I accept his contention-, that merely because the purpose of a document is the provision for maintenance, it need not, therefore, be necessarily construed as conferring a limited estate, provided the document can be reasonably read or construed as giving an absolute estate. As I have already said, the words 'for your maintenance' are not to be found in the gift-deed itself and that no oral evidence should have been allowed to have the effect of introducing those words in the document.

23. I do not propose to refer to any other decisions in this connection, and I proceed to give now my own interpretation of the terms of the gift-deed in the light of the observations already made. I may say, with respect, that in the conclusion that I have arrived at, I am very naturally influenced by the view of my learned brother, who from the start, when he read the will, which is written in his own vernacular, was inclined to the opinion that it conferred an absolute estate without any words of limitation. The name given to the document, the absence of any words of limitation, as I construe them, the absence of any further provision providing that the property in the event of the death of the lady should go to a particular person, and the words themselves, namely, bakshis patra, read with the clauses already quoted above, are, in my opinion, sufficient to enable us to hold that the donor intended to confer an absolute estate. The donee was a young lady. She lived with her uncle, and not with the donor. The obligation which she conferred upon the donor has been expressly mentioned in the document, and it is not unreasonable, therefore, to conclude that the donor, the adopted son, when he came into possession of a hundred bighas, was willing to give about sixteen or seventeen bighas out of them to his junior adoptive mother absolutely. If I were free to interpret the rulings and give my own opinion, I should adopt almost in its entirety the reasoning in Ramachmdra Rao v. Rama-chandra Rao I.L.R. (1918) Mad. 283 where Mr. Justice Seshagiri Ayyar has discussed the previous authorities. It is true that this decision was reversed by the Privy Council (on another ground, viz., that the subject-matter was res judicata) and the decision in Ramchandra Rao v. Ramchandra Rao contains certain observations made with a view to explain the decision in Surajmani v. Rabi Nath Ojha. I may, however, make one observation as regards the emphasis laid on the donee being a Hindu widow that the remarks made by their Lordships of the Privy Council in Mahomed Shumsool v. Shewukram were made many years ago and that notions of every Hindu of the present day need not be assumed to be the same as they were in those days. In Bombay, sisters and daughters have been known to be taking absolute interests even by inheritance, and it will not be quite reasonable, merely because a donee happens to be a female, to start with a presumption in favour of the gift or the transfer being limited, I, therefore, on the wording of the document read as a whole, hold: that by the gift-deed Prabhabai took an absolute interest in the properties given to her without any words of limitation, and that she was, therefore, competent to make the will which she did in favour of the present plaintiff.

24. If the suit had been against defendant No. 1 alone, the plaintiff would have been entitled to recover possession of the properties as a devisee under the will, and so far as the properties in possession of defendant No. 1 are concerned, the plaintiff would be entitled to recover possession of the same. The question, however, arises as regards the properties which are not in the possession of defendant No. 1, but which are transferred by him by two documents in favour of defendants Nos. 2 and 3 respectively (exhibits 79 and 82). As the case of the two defendants is similar, I will not deal with the case of each separately. The learned Judge has held that the plaintiff is precluded by the application of Section 41 of the Transfer of Property Act from recovering the properties in the possession of defendants Nos. 2 and 3, and that defendants Nos. 2 and 3 have purchased them in good faith after making due enquiries. With this conclusion we agree so far as the properties in the possession of defendants Nos. 2 and 3 are concerned. It is conceded that after the death of Prabhabai it was defendant No. 1 who got his name entered in the record of rights, it was he who took, or continued to be in, possession of the properties, and it was he who enjoyed the rents and profits of the same and paid their assessment, and it was not until the date of the present suit that the plaintiff propounded the will on which he relies, nearly four years afterwards. By two registered documents dated November 19, 1929, and December 18, 1929, defendants Nos. 2 and 3 respectively purchased the properties which are parts of survey No. 105. It is proved to our satisfaction that they made due enquiries by examining the record of rights. The presumption is that all official acts were properly performed, so that at the time when the entries were made in the record of rights general notice was also issued as required by Section 135, Clause (D), of the Bombay Land Revenue Code. The plaintiff does nothing at or after the revenue enquiry, but also sits silent after the sale-deeds are effected and gives no notice to either of the defendants, and if we remember that it is not the case of the plaintiff that even defendant No. 1 was himself aware of the will, we have a case in which both the vendor, who was admittedly the legal heir apart from the will of Prabhabai, as well as the vendees, who had no reason to-suspect that anybody but defendant No. 1 was the real owner, acted in good: faith. There is no evidence of any express consent on the part of the plaintifF. B.ut the acts exercised by defendant No. 1 are acts that are indubitably acts of ostensible ownership. Having regard to the facts that the will was handed up to the plaintiff immediately on its execution, that the deceased was his niece, that he was aware of the death of the deceased, that he knew that Rs. 200 or Rs. 300 were the rents of the lands, which were valuable, and that he sat silent throughout in spite of his rights as a devisee under the will and allowed defendant No. 1 to act as the ostensible owner, it is reasonable to infer, as we do, that defendant No. 1 remained the ostensible owner of the properties by the plaintiff's implied consent. I am not satisfied that the only explanation that he professed to give from the witness-box that he was ill for a period of three years is either a true or a reasonable explanation to account for the fact of his silence and inaction both at the revenue enquiries and subsequently. We, therefore, agree that the learned Judge's conclusion with regard to the applicability of Section 41 of the Transfer of Property Act is correct and that the plaintiff should not be held entitled to recover possession of those properties which have been transferred by defendant No. 1 to defendants Nos. 2 and 3.

25. In discussing the gift-deed (exhibit 33) I have not alluded to Section 8 of the Transfer of Property Act which was not referred to at the bar. Section 2 of the Transfer of Property Act has been amended in 1929 so as to drop the word 'Hindu'. So that from 1929 the provisions in Chapter II would apply to Hindus. In 1922 when the gift-deed came to be executed the word 'Hindu' was there in Section 2.

26. Section 122 of the Transfer of Property Act defines 'gift' as 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.

27. Section 8 says:

Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor capable of passing in the property, and in the legal incidents Section 2, as it originally stood, stated 'nothing in the second Chapter of is then thereof.

28. Section 2, as it originally stood 'nothing in the second Chapter of this Act shall be deemed to affect any rule of Hindu, Muhammadan or Buddhist Law'. So that if there was no rule of Hindu law necessarily qualifying an estate given to a Hindu woman so as to make it a restricted one, under Section 8 properly interpreted, there being no such rule requiring an estate to be treated as a qualified estate or limited estate, a transfer by way of gift would have to be treated as conferring upon the donee the whole of the interest which the transferor was capable of passing at the date of the deed. It is difficult to treat the dicta in some of the cases as laying down or enunciating 'a rule of Hindu law' requiring a transfer in favour of a woman to be treated as a limited transfer, and if I am right so far, in the case of the gift-deed with which we are concerned in this case, under the combined operation of Section 122 read with Section 8 of the Transfer of Property Act, which would apply in the absence of a rule of Hindu law to the contrary, the gift-deed must be presumed to confer the whole of the estate which the donor was capable of transferring. I have not based my judgment on this ground, but I think this is an additional ground for holding that Prabhabai got an absolute estate under the gift-deed (exhibit 33).

29. In the result, the plaintiff's suit is decreed as against defendant No. 1 in so far as the properties not transferred to defendants Nos. 2 and 3 are concerned; whereas it is dismissed as against defendants Nos. 2 and 3 as regards the properties which have been transferred to defendants Nos. 2 and 3 respectively.

30. The plaintiff will be entitled to mesne profits as regards the lands in possession of defendant No. 1. An enquiry under Order XX, Rule 12, will have to be made and we direct it to be made accordingly.

31. The plaintiff will pay the costs of defendant No. 3 both in the suit and in the appeal as calculated on an amount of Rs. 1,300. Plaintiff will also pay the costs of defendant No. 2 in the suit as directed by the lower Court. As defendant No. 2 has not appeared in the appeal, there will be no order as to costs payable to him in the appeal. Defendant No. 1 will pay the costs of the plaintiff both in the suit as well as in the appeal calculated on the amount of Rs. 2,800. Defendant No. 1 will get no costs.

Wassoodew, J.

32. I agree, and have nothing to add.


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