1. This case originated in an application to the Subordinate Judge in the matter of the insolvency of one Vyas Purshottam Vithalrai under the provisions of the Bombay Provincial Insolvency Act for an order that, the house mentioned in the application should not be sold by the Receiver as belonging to the insolvent's estate. It would appear that the house was the property of the late Sir Chinubhai.' 'We assume for the present purpose that Sir Chinubhai gave possession of the house to the insolvent's father Vithalrai. No document was passed by Sir Chinubhai so as to transfer the title from himself to Vithalrai. But Vithalrai passed a document to Sir Chinubhai which, after reciting that a gift had been made to him of the property, stated that he had been put in possession of the house on certain conditions. He admitted that he and his heirs had no right to mortgage the house or sell, or create any charge on it. They had only the right to reside in the house. The insolvent mortgaged the house to one Mahant Jugaldas Laldas, who opposed the application made by the son of Sir Chinubhai to prevent the Receiver from selling the house.
2. The trial Court held that the insolvent had no saleable right to the house but had the right of occupancy only and therefore the Receiver could not put up the house in question for sale. The District Judge reversed this order holding that there had been an irrevocable gift of the house by Sir Chinubhai to the father of the insolvent, while the condition in restraint of mortgaging or selling the property was void, so that the title in the house was in the insolvent and not in the heir of Sir Chinubhai. The learned Judge said:
On all this evidence oral and documentary it appears to me that Sir Chinubhai intended to make a gift of the house to a Brahmin on the occasion of his daughter's death. There is no provision for eviction or re-entry in case of breach and it is impossible in, my opinion, to construe the document as lease. But if it is not a lease it can hardly be anything else but a gift, and a religious gift.
3. If this document had been executed by Sir Chinubhai in favour of the insolvent's father, and contained words sufficient to pass a title in the property to him, then undoubtedly it would have constituted a gift. The question would then arise whether it would be a conditional gift which restrained the power of the donee with regard to mortgaging or selling the property. Bat this document is only evidence of an oral assignment which had been made between Sir Chinubhai and the insolvent's father. Assuming that Sir Chinubhai intended to make a gift of the property to the insolvent's father, he could not pass the title in the property without complying with the provisions of Section 123 of the Transfer of Property Act, which says:
For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
4. Therefore in any event it cannot possibly be said that this document signed by the insolvent's father could have effected a valid gift of the property within the provisions of that section. Although it has been held that the provisions of Section 107 of the Transfer of property Act, which enact how a lease of Immovable property is to be made, are complied with if the lessee signs a document in favour of the owner, I am of opinion that a gift cannot be created by a document signed by the person intended to be benefited by an oral gift, in favour of the owner of the property acknowledging the gift. In effect Exhibit 31 is merely an admission by the insolvent's father that he was in possession of the house belonging to Sir Chinubhai with the right to reside in it and that he had no right either to mortgage or sell it. Whatever right the insolvent then had to the house so delivered into the possession of his father by Sir Chinubhai, it would be impossible to say that he had any interest in the house which could be put up by the Receiver for sale.
5. Therefore we allow the appeal and restore the order of the Subordinate Judge. The appellant to get his costs in this Court and in the Court below.
6. I agree in holding that the insolvent Vyas Purshotam Vithalrai possessed no saleable interest in the property in question. It is contended before us that the document Exhibit 31, executed by the insolvent's father Vithalrai in favour of Sir Chinubhai on December 30, 1909, could be regarded as a deed of gift. I find considerable difficulty in accepting, that contention. The language of Section 123 of the Transfer of Property Act is clear. It requires that for the purpose of making, a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor. In this case Exhibit 31 does not-satisfy that requirement; and there is no-evidence in proof of the allegation that Sir Chinubhai had transferred this property to Vithalrai in accordance with the law. It was then contended that Exhibit 31 is effective as a deed of gift, on the analogy that a kabuliyat signed by the lessee only is effective as a lease. There is, no doubt, authority in favour of the view that a lease may be created by registered instrument signed by the lessee and accepted by the lessor. But the answer to the respondents' contention is that whereas Section 123 requires that the registered instrument must be signed by or on behalf of the donor. Section 107 contains no such express provision.