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Dolly Edelwaize D'Silva Vs. Mrs. MaelakIn and Ors. (22.10.1942 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectFamily ;Property
CourtAllahabad
Decided On
Reported inAIR1943All95
AppellantDolly Edelwaize D'Silva
RespondentMrs. MaelakIn and Ors.
Excerpt:
- .....was, therefore, entitled to a succession certificate provided she succeeded in establishing the gift alleged by her. it would be noted that section 191 is a part of the succession act and the preamble to that act runs as follows:whereas it is expedient to consolidate the law applicable to intestate and testamentary succession in british india; it is hereby enacted as follows:a gift under section 191, therefore, relates to 'succession' within the meaning of the act and, as a donee under a gift in accordance with section 191 of the act succeeds to the property gifted on the death of the donor, such a donee is entitled to have a succession certificate granted provided the alleged gift is established. for the reasons given above we allow this appeal, set aside the decision of the district.....
Judgment:

Iqbal Ahmad, C. J.

1. This appeal is directed against an order passed by the District Judge of Gorakhpur rejecting an application filed by the appellant for the grant of a succession certificate with respect to some post office cash certificates that were held by one Joseph Anderson deceased. The appellant alleged in her application that Joseph Anderson had made a gift 'in contemplation of death' in respect of the cash certificates in her (appellant's) favour. The application was opposed by the respondents inter alia on the ground that, even if a gift as alleged by the appellant was made in her favour by Joseph Anderson, a succession certificate could not be granted inasmuch as the cash certificates did not pass to the appellant 'by succession'. The learned Judge accepted this contention of the respondents and rejected the application filed by appellant. He, however, did not decide the question whether a gift 'in contemplation of death' as alleged by the appellant was made in her favour by Joseph Anderson. 'We are unable to agree with the decision of the District Judge. Provision about gifts 'in contemplation of death' is made by Section 191, Succession Act (39 of 1925). It is enacted by Clause (1) of that section that a man may dispose, by gift made in contemplation of death, of any moveable property which he could dispose of by will. Clause (3) of the section provides that

such a gift may be resumed by the giver, and shall not take effect if he recovers from the illness during which it was made; nor if he survives the person to whom it was made.

2. It is manifest from this provision that a gift in pursuance of Clause (1) of the section does not immediately vest the property gifted in the donee and that it is open to the donor to resume the gift during lifetime. Further the gift does not become operative if the donor recovers from the illness during which he made the gift or if the donee dies during the lifetime of the donor. It follows that the property gifted remains the property of the donor till the date of his death and it is only, on the donor's death during the lifetime of the donee, that the property passes to the donee, provided the donor had not resumed the gift in his lifetime. A gift in pursuance of the provisions of Section 191 partakes of the nature of a will and is, therefore, essentially different from a gift of the description contemplated by Section 122, T.P. Act. As the property gifted 'in contemplation of death' remains the property of the donor till the date of his death the donee succeeds to the property only on the death of the donor, provided the donor had not resumed the gift in his lifetime. There is, therefore, no escape from the conclusion that if a gift, as alleged by the appellant was made by the deceased, she succeeded to the cash certificates on the death of the donor. She was, therefore, entitled to a succession certificate provided she succeeded in establishing the gift alleged by her. It would be noted that Section 191 is a part of the Succession Act and the preamble to that Act runs as follows:

Whereas it is expedient to consolidate the law applicable to intestate and testamentary succession in British India; it is hereby enacted as follows:

A gift under Section 191, therefore, relates to 'succession' within the meaning of the Act and, as a donee under a gift in accordance with Section 191 of the Act succeeds to the property gifted on the death of the donor, such a donee is entitled to have a succession certificate granted provided the alleged gift is established. For the reasons given above we allow this appeal, set aside the decision of the District Judge and remand the case to him with the direction to try and dispose of the same according to law. Costs here and hitherto will be costs in the cause and will abide the result.


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