Grimwood Mears, C.J., Piggott, Gokul Prasad, Kanhaiya Lal and Sulaiman, JJ.
1. The only point referred to the Full Bench for consideration is the question of the validity or otherwise of a deed of gift, dated the 29th of January, 1894, executed by Musammat Tulsha Kunwar in favour of her only daughter, Musammat Naraini Kunwar. This document recites that Musammat Naraini Kunwar was her sole issue and the donor wished to give the entire property in seven villages to her; but that, inasmuch as during her life-time she had also to provide for her own maintenance and other necessary expenses, and it was reprehensible and forbidden for her to receive any benefit or to take anything from her daughter, she considered it proper to get the name of her daughter recorded over four villages at once, but to remain in possession of the other three villages for her life, meeting the expenses of her maintenance and other necessary expenses from the profits thereof. But all the seven villages were comprised in the gift, and it was stated that she had no longer any claim or right left in respect of all the property gifted, and the donee would have all the powers of a proprietor, with this exception that the three villages last mentioned would remain in her possession during her life and she would bring the profits thereof into her use, but she would have no power of sale, mortgage, gift, or other transfer and they would after her death come into the proprietary possession of her daughter.
2. It is an admitted fact that Musammat Tulsha Kunwar allowed Musammat Naraini Kunwar to obtain possession over the four villages first mentioned, and got her name recorded in respect of them in the revenue papers. There is thus no doubt as to the genuineness of her intention. It is assumed for the purpose of this reference that Musammat Tulsha Kunwar was the full proprietor, and the only question is as to the validity of the gift in respect of the three villages, over which she had retained the right of remaining in possession for life and did in fact retain possession. Musammat Naraini Kunwar died in the life-time of Musammat Tulsha Kunwar, and the present dispute is between the respective heirs of the two ladies.
3. Reading the document as a whole, there can be no doubt that it was not a bequest of the three villages by Musammat Tulsha Kunwar in favour of her daughter, but that she did intend to effect a transfer in praesenti of her proprietary interest in the three villages, though she stipulated that she would have the right to remain in effective possession of them by appropriation of their profits for her life.
4. The learned Counsel for the defendant appellant has urged, (1) that under the Hindu Law delivery of possession was absolutely essential for the completion of the gift, (2) that that provision of the Hindu Law has in no way been affected by the passing of the Transfer of Property Act and (3) that in any case a provision, that the donor is not to deliver possession during her life-time to the donee vitiates the gift altogether.
5. As to the first point it may be conceded at once that the general trend of the authorities prior to the passing of the Transfer of Property Act was to the effect that under the Hindu Law a gift, unaccompanied by delivery of possession, was invalid. A number of cases on this point have been cited on behalf of the appellant, but we consider it unnecessary to review them. It may be assumed for the purpose of this case that the defendant's contention is correct.
6. We are, however, of opinion that whatever might have been the strict Hindu Law prior to the passing of the Transfer of Property Act, it must now be held that a gift of immovable property can be validly effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses, and that nothing further is necessary to effectuate a transfer. Section 129 of the Transfer of Property Act provides that nothing in Chapter 7 shall, save as provided by Section 123, be deemed to affect any rule of Hindu Law. This clearly indicates that Section 123 might supersede a rule of Hindu Law. Section 123 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument duly signed and attested, whereas for the purpose of making a gift of movable property the transfer may be effected by a registered instrument duly signed or by delivery. It is obvious that under the latter clause a gift of movable property can be effected by a duly signed and registered instrument and without delivery. This does away with the provision of Hindu Law, requiring delivery of possession as regards movable property. Now, the first clause uses the word 'must' which is significant, and omits the words 'or by delivery.' A reasonable interpretation of Section 123 would, therefore, be that a registered instrument duly signed and attested is quite sufficient to effect a gift of immovable property, and that such a gift can be effected in no other way.
7. Dr. Katju, on behalf of the appellant, has strongly contended that by Section 123 it was merely intended to add one more requirement of law, namely, that of attestation and registration, to those enjoined by the Hindu Law, and that the section did not mean that where there was a registered document duly signed and attested, all the other requirements of Hindu Law were dispensed with. Section 123 has, how ever, been interpreted by all the High Courts continuously for a very long period in the way first indicated, and there is now a uniform consensus of opinion that the effect of Section 123 is to supersede the rule of Hindu Law, if there was any, for making the delivery of possession absolutely essential for the completion of the gift. We may only refer to a few cases for the sake of reference, Dharmodas Das v. Nistarini Dasi (1887) I.L.R. 14 Calc. 446, Balbhadra v. Bhowani (1907) I.L.R., 34 Calc 853 Alabi Koya v. Mussa Koya (1901) I.L.R. 24 Mad. 513 at 522 Madhav Rao Moreshwar Pant Amatya v. Kashibai Kom Dattubhai (1909) I.L.R. 34 Bom. 287 Man Bhari v. Naunidh (1881) I.L.R. 4 All. 40 Balmakund v. Bhagwan Das (1894) I.L.R. 16 All. 185 and Phul Chand v. Lakkhu (1903) I.L.R. 25 All. 358. Where the terms of a statute or ordinance are clear, then even a long and uniform course of judicial interpretation of it may be over-ruled, if it is contrary to the clear meaning of the enactment; but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the statute by the courts, and not to disturb those decisions, vide the remarks of their Lordships of the Privy Council in the case of Tricomdas Co-overje Bhoja v. Sri Sri Gopinath Jiu Thakur (1916) 25 C.L.J. 279 at 284. We are, therefore, clearly of opinion that it must now be accepted that the provisions of Section 123 do away with the necessity for the delivery of possession, even if it was required by the strict Hindu Law.
8. The third point raised by the learned advocate for the appellant requires a little consideration. It has been very strenuously contended that where the deed of gift itself provides that the donor is to retain possession over the property and appropriate the profits, the transaction is void ab initio and is not a valid gift under the Hindu Law at all. Reliance is strongly placed on a number of cases which were decided prior to the passing of the Transfer of Property Act, in which it was held that the delivery of possession was absolutely essential, and it is contended that when the delivery of possession was essential, then a provision in the deed that no delivery was to take place at all, invalidates the gift altogether.
9. In the first place these earlier cases were decided prior to the passing of the Transfer of Property Act, and the provisions of Section 123 of the Act were not applicable. Now that the delivery of possession is no longer necessary, it would follow that a provision in the deed of gift that no such delivery was to take place during the life-time of the donor, would not necessarily invalidate it.
10. In the second place, the reservation of a temporary advantage or a limited benefit does not necessarily militate against a complete transfer of the title, and unless there is something in Hindu Law which is repugnant to it, it must be upheld. Now, according to our interpretation, the true intention of the donor was to effect a transfer in praesenti of the proprietary interest in the three villages in dispute and to vest the same in the donee, with a reservation of the right to enjoy the usufruct during her own life-time. We do not consider that she meant to create two distinct and separate estates; one, which she reserved for herself, and the other which she bestowed on the donee, providing that the estate which she had reserved for herself would also vest in the donee after her own death. On the other hand, we are distinctly of opinion that the whole interest in the three villages vested immediately in the donee, and the donor had no power of disposal left over it. The only right that was reserved to her was to enjoy the profits thereof. There was an immediate gift of all the seven villages, but the enjoyment by the donee of the profits of three villages was postponed till after the death of the donor.
11. Such a gift is not in any way opposed to common law or to public policy, nor is such a transfer invalid under the provisions of the Transfer of Property Act. We have, therefore, to see whether there is anything in the Hindu Law which is repugnant to it. No authority which is exactly in point has been cited before us on either side. The learned advocate for the appellant has, however, referred to us the case of Dagai Dabee v. Mothuranath Chattopadhya (1883) I.L.R. 9 Calc 854. There the gift was not governed by the Transfer of Property Act. The view then expressed was that the gift of a house, in a ease where the donor reserved to himself the right of remaining' in the house for the term of his life and which was unaccompanied by physical delivery, or any symbolical act by which physical delivery could be held to be implied, was invalid. The decision was based entirely on the supposed rule of Hindu Law that delivery of complete possession was absolutely essential. That ruling is hardly in consonance with the opinion expressed by the Calcutta High Court in subsequent cases. The case cited in Macnaghten's Hindu Law, Vol. 2, at page 207, is not in point because there the competition was between a gift, unaccompanied by the delivery of possession, which was to take effect after the death of the donor, and a subsequent gift by which the donor delivered possession to another donee. That was strictly not the case of a gift in praesenti, but something in the nature of a bequest. At that time testamentary dispositions not having been separately recognized, the case was treated as falling under the heading of gifts.
12. Lastly, the case of Harjivan Anandrdm v. Naran Haribhai (1867) 4 Bom. H.C.R. A.C. 31 has been cited, and our attention is particularly drawn to the texts quoted at page 34. But there, too, the possibility of the donor retaining possession of the property with the consent of the donee is recognized. We cannot take, these texts necessarily to imply that the donor cannot gift away the property with a condition attached, reserving the usufruct of a part of the property to himself for life. The other cases cited are not directly in point.
13. A reference has also been made to a passage in Ram Lal Sett v. Kami Lal Sett (1886) I.L.R. 12 Calc, 663 at 668 to the effect that 'gifts are of three kinds--those which convey a present title and interest, and a present right of enjoyment; those which are vested, that is, present in interest, but in which the enjoyment is deferred; and those which are contingent, that is to say in which neither title nor right of enjoyment is given at present, but both depend upon future and certain events. All these kinds of gifts are admissible among Hindus, all are recognized by the Succession Act, the Hindu Wills Act and the Transfer of Property Act. All these kinds of gifts may among Hindus be given, subject to various restrictions, either inter vivos or by will, and, speaking generally, the same law applies in either case.' But this remark is certainly an obiter dictum.
14. In West and Buhler's Digest of Hindu Law, 4th Edition, at page 188, it is stated that the grantor may stipulate or provide for various advantages to himself or to others arising out of the property, and so far diminish the advantages of the proprietor in it, and then on page 190 it is said on the authority of Jagannath that the gift of property is valid though it be accompanied by the donor's retention of a life-interest. No distinction was, however, made by Jagannath between a gift and a testamentary disposition. The case of Kasim Husain v. Sharif-un-nissa (1) where a gift of a muafi estate with a reservation of the income of that share, without power of alienation, for life was held to be valid, was a case under the Muhammadan Law and is not applicable to the present case.
15. In the absence of any clear authority restricting the power of the donor, we are of opinion that there is nothing in the Hindu Law which on principle would make a reservation of the usufruct of a part of the property for life by the donor, or the postponement of the enjoyment by the donee of a part of the profits till after the donor's death, a repugnant condition and render the gift invalid. Furthermore, we are of opinion that inasmuch as the legislature has now dispensed with the necessity of delivery of possession in the case of gifts by Hindu donors, a reservation of the kind indicated above would now much less affect the validity of such gifts. Under the Hindu Law, gift and its acceptance by the donee are essential. Here both these elements exist.
16. Our answer to the reference, therefore, is that a Hindu lady who is the full proprietor of immovable property, can by a registered document, duly signed and attested, validly make an immediate gift of it, although she reserves to herself the enjoyment of the usufruct or profits of a part of the property for her life-time and without retaining any power of alienation over it.
15. The appeal will now be restored to the Division Bench for disposal.
[On receipt of the decision of the Full Bench, the Division Bench dismissed the appeal with costs.]