1. This is a plaintiff's appeal arising out of a suit for proprietary possession of a village of the name of Sarai Aghi Chand alias Chandaukhi situate in pargana Sikandara of the district of Allahabad and for recovery of Rs. 500 on account of mesne profits for Kharif and Rabi 1331 Fasli. One Thakur Jagtamba Prasad Singh was the owner of the property in suit jointly with the plaintiff who was his son. The plaintiff is a parihar Thakur. The defendant belongs to the Baghel clan. He is highly connected and belongs to the family of His Highness the Maharajah of Rewah. Jagtamba Prasad Singh had a daughter of the name of Mt. Pershad Kuer. He gave this daughter in marriage to the defendant in the month of June of the year 1915. On 8th May 1918 Jagtamba Prasad Singh executed a deed of gift in favour of his daughter, certain recitals of which are material for the purpose of this appeal. He stated in this document:
On the occasion of 'kanyadan' ceremony of my daughter Mt. Parshad Kuar, I the executant had made a 'sankalap' of my zemindari property of the value of Rs. 8,000, situate in mauza Sarai Aghai Chand alias Chandauki pargana Sikandra, district Allahabad, but the deed of gift could not be executed up to this time'... 'I have made a gift of a 16 anna zamindari property bearing a jama of Rs. 443, situate in mauza Sarai Aghai Chand alias Chandauki... in favour of Mt. Parshad Kuar, wife of Anmol Singh, resident of Patharhi, Rewah State, daughter of me, the executant. I have put the donee aforesaid in possession and occupation of the property, like myself, as my representative. The donee should remain in possession and occupation of the gifted property and enjoy the same as a proprietor. All the rights which I, the donor, had in the gifted property prior to the execution of this deed of gift have been transferred to the said donee from this date. Now I have ceased to have any right or share in the gifted zemindari property. The donee is the owner of the entire property. She can do whatever she may like with it'.... If Mt. Parshad Kuar donee daughter of me the executant, begets any male issue, then that son will be the owner of the gifted property. If by chance she does not beget any male issue, then the gifted property shall revert to the family of me, the executant.
2. Thakur Jagtamba Prasad Singh died in November 1920, leaving the plaintiff the sole surviving member of the joint family. Mt. Parshad Kuar died on 5th December 1922. She gave birth to no children by the defendant and left no male issue. Mutation of names was effected in favour of Mt. Parshad Kuar, in pursuance of the deed of gift. Upon the death of Mt. Parshad Kuar, troubles arose in the Court of revenue in connexion with the mutation of names. The plaintiff's name was ordered to be mutated by the Assistant Collector, on 31st May 1923. The Collector, however, reversed that order and directed the name of the defendant Anmol Singh to be brought upon the revenue record by his order, dated 17th August 1923. This order was confirmed by the Commissioner, on 27th November 1923.
3. This suit was commenced, on 31st May 1924. The deed of gift was attacked on a variety of grounds. The plaintiff urged that the document had not been properly attested, that mauza Chandauki was the joint ancestral property of the plaintiff and Thakur Jagtamba Prasad Singh, that the latter was not competent to donate the property to his daughter, that the document had never been enforced, and that in any case the plaintiff was entitled to recover possession of the property under the terms of the deed of gift as Mt. Parshad Kuar had died without leaving any male issue.
4. An ex-parte decree was passed against the defendant on 30th September 1924, but this decree was set aside by the order of the Court dated 9th January 1925 and the case was restored to its original number.
5. The defendant contested the suit on the ground that the plaintiff's father had made a sankalap of the property in controversy at the time of the kanyadan ceremony by way of dowry to the defendant and not to Mt. Parshad Kuar, that the deed of gift had been executed in continuation of the said transaction, that since the sankalap and the deed-of-gift aforesaid the defendant and his wife had remained in proprietary possession of the property, and that the condition in the deed of gift that the property was to revert to the family of Jagtamba Parsad Singh, if Parshad Kuar died without begetting and leaving any issue, was inserted into the deed of gift without the knowledge or consent of the defendant and his wife and that the said condition was not binding or enforceable. The learned Subordinate Judge found that the property was joint ancestral property of the plaintiff and his father, that the property was gifted by way of sankalap to the daughter, Mt. Parshad Kuar, on the occasion of the marriage and not to the defendant, that Jagtamba Prasad Singh was competent under the Hindu law to make this gift in favour of his daughter, which was of a reasonable portion of the joint ancestral property, that the gift made at the time of the sankalap was absolute and conferred on absolute title upon the daughter, that the dead of gift dated 8th May 1918 was duly attested by witnesses, that the gift was given effect to from the date of the sankalap and the donee had remained in possession of the property through her father, Jagtamba Prasad Singh: that Jagtamba Prasad Singh was not competent to insert a condition in the deed of gift that the property was to revert to his family on the happening of a particular contingency, namely, the death of Mt. Parshad Kuar without leaving an issue, that the said condition was inserted into the deed of gift without the knowledge of the donee, who was a minor and of her husband Anmol Singh, the present defendant and that the marriage of Mt. Parshad Kuar having been made in the approved form, the property in suit was the stridhan of Mt. Parshad Kuar and her husband was the heir to this property under the Mitakshara law. On these findings the learned Subordinate Judge dismissed the plaintiff's suit.
6. The evidence as to the attestation of the document is very meagre and unsatisfactory but the learned Counsel for the appellant does not assail the finding of the learned Subordinate Judge that the document was duly attested. He also does not impugn the deed of gift upon the ground that the father was not competent to donate a portion of the joint ancestral property in favour of his daughter on the occasion of her marriage. He challenges the finding of the learned Subordinate Judge that the sankalap of the property in suit was made by Jagtamba Parshad Singh to Mt. Parshad Kuar at the time of the nuptials We have been taken through the statements of the plaintiff's witnesses, Banspati Singh, Samarjit Singh, Krishna Pal Singh Baijnath Singh and Sheo Sahai Lal. They are unanimous in stating that the property was not gifted to the daughter at the time of the kanyadan ceremony but was given at the time of the gauna ceremony which took place about three years later. The learned Subordinate Judge has given excellent reasons for disbelieving the statements of these witnesses. There does not appear to be any reason whatsoever for doubting the correctness of the statement contained in the deed of gift that Jagtamba Prasad Singh had made a sankalap of his property on the occasion of the kanyadan ceremony of his daughter. We uphold the finding of the Court below that the gift was initially made by way of sankalap at the time of the nuptial and not at the time of the gauna ceremony to Parshad Kuar. It is next urged that no valid title could pass to the donee by a mere sankalap of the property at the time of the kanyadan ceremony. The learned Subordinate Judge was of opinion the gift by way of sankalap was a nuptial gift under the Hindu law and as such it was not liable to resumption or revocation. There appears to be some confusion of thought underlying this argument. The law relating to immovable property affecting Hindus is embodied in Chap, 7, T.P. Act. Section 129, T.P. Act provides:
that nothing in this chapter'... shall be deemed to affect... save 'as provided by Section 123, any rule of Hindu... law
7. Section 123 provides:
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 and attested by at least two witnesses.
8. The provision of the statute is mandatory and imperative; and it follows that no gift of immovable property can be made except by means of registered instrument signed by or on behalf of the donor and attested by a least two witnesses. A gift by way of sankalap therefore could not operate as a valid gift of immovable property. It; could not divest the donor of his proprietary rights in the property or clothe the donee with any title to the same. Jagtamba Prasad Singh must, in the eye of law, be taken to have continued to remain the owner of the property in dispute right up to the date when has executed the deed of gift dated 8th May 1918. Before that date the donor had not handed over to the donee an instrument of gift duly executed and attested and the mere fact of the property having been made directly or constructively and been accepted by the donee at the time of the nuptials did not confer an absolute title of the property upon the donee. The learned Subordinate Judge has erred in law in holding that the sankalap itself constituted an absolute gift of the property to the donee and that the subsequent deed-of-gift executed and registered on 18th May 1918 contained a revocation clause. If Jagtamba Prasad Singh was, on the date of the execution of the deed of gift, the owner of the property, as we hold that he was, he was competent to transfer the property absolutely to the daughter with a condition super added that on the happening of a certain contingency, the estate was to revert to his family. There is nothing in law to prevent the donor from bestowing an absolute estate upon the donee and adding a defeasance clause that on the happening of a specified uncertain event the estate was to cease or terminate. Section 28, T.P. Act, provides that
on a transfer of property an interest therein may be created to accrue to any person with the condition super added that in case, a specified uncertain event shall happen, such interest shall pass to another person or that in case a specified uncertain event shall not happen such interest shall pass to another person.
9. This section evidently gives statutory recognition in India to those executory interests which in English law are known as executory devises if contained
in a will and, before the Statute of Uses was repealed, were called springing or shifting uses, if such estates were created in real property by deed.
10. It has been held by the Privy Council in Kristoromoni Dasi v. Krishna Bahadur [1889J 16 Cal. 383 that
it is competent to a Hindu in making his will to make a provision that the estate which he creates and gives to the recipient of his bounty may be divested or defeated by something which takes place after.
11. The limitations within which the rule is to operate have been discussed at length in this case. There can be no doubt that the rule is as much applicable to gifts as it is to wills. This view is supported in principle by the decision in Soorjee Money Dosee v. Denobundoo Mullick [1861-63] 9 M.I.A. 123 (P.C.) and their Lordships ruled that the title of a particular donee was defeasible upon the event of his death without leaving any son or son's son then living. The case of Lalit Mohan Singh v. Chukkun Lal Roy  24 Cal. 834 does not appear to be a case in point because their Lordships' refused to consider the effect of the gift over, because the contingency upon which the property was limited to go over had not happened and might not occur at all.
12. It was within the power of Jagtamba Parshad Singh to provide a defeasance clause in the deed of gift. He was the owner of the property on 8th May 1918 when the deed of gift was executed. It was within his competency to insert the defeasance clause in the instrument and the consent of the donee was not necessary to validate the said clause. We cannot believe for a moment the defendant's story that he or the donee knew nothing about the defeasance clause in the instrument of gift. A registered instrument had been executed and the instrument must have been put into the position of the donee and her husband. The original document has not been produced by the defendant in this case. This is a matter which appears to us to be not without some significance. We hold that the donee and her husband were aware of the terms of the document and it did not in any way affect the validity of the defeasance clause whether they know the same or they did not. The learned Counsel for the respondent repudiates the finding of the trial Court that the original gift made at the time of the sankalap was not to the daughter but to her husband, the defendant. A number of witnesses have been produced by the defendant to prove this. They appear to us to be the creatures of the defendant. Most of them were not even present at the time of the nuptials. There is a clear recital in the deed of gift that sankalap was made to the daughter The gift was followed by mutation in favour of Mt. Parshad Kuar. The profits of the property were paid to her during her lifetime. Upon the death of Mt. Parshad Kuar, the defendant applied for mutation, not in his own right but as heir to and successor of Mt. Parshad Kuar. We have not the least doubt about the correctness of the finding of the learned Subordinate Judge that the gift by way of sankalap was made to Mt. Parshad Kuar and not the defendant.
13. The learned Counsel for the respondent contends there even though no formal instrument of gift was executed and registered simultaneously with, or a short time after the sankalap of the property at the kanyadan ceremony, the donee was immediately put into possession of this property and that, inasmuch as the property was transferred absolutely at the time of the sankalap without any conditions whatsoever as to defeasance, a complete title passed to the donee under the doctrine of part performance. There can toe no doubt that
equity will in certain cases support a transaction clothed imperfectly in those legal forms to which finality attaches after the bargain has been acted upon.
14. The plea as to part performance was not raised in the written statement nor argued before the trial Court. Under Section 37, Bangal N.W.P. and Assam Civil Courts Act, the Courts in these provinces are to adjudicate according to justice, equity and good conscience, where there is no law governing the case. A positive enactment of law such as is contained in Section 123, T.P. Act, cannot be ignored or overridden by a rule of equity. The doctrine of part performance moreover is an extension of the rule of estoppel which may form a valid plea to resist an action in which the title of the defendant was not founded upon a completed contract. Where there is a mere executory contract, the remedy of the party aggrieved is by a suit for specific performance of the contract instituted within the period of limitation. In the case of a completed contract where all the formalities required by law have been duly fulfilled, the case of the party rests upon a perfected title. In between these two stages, comes part performance. This gives rise to certain rights which are higher than the rights arising under the contract and which fall short of the rights under a completed transfer. The learned Counsel for the respondent has to face certain difficulties. Marriage under the Hindu law is not founded upon contract. It is one of the sanskars; and its validity rests upon the performance of certain sacramental rites. The doctrine of part performance, which has in certain English cases been applied to pre-nuptial settlements in consideration of marriage, cannot, under the circumstances, be applied to a gift made by way of sankalap at the time of the marriage, which is a sacrament and not the outcome of a contract. In Ram Gopal v. Tulshi Ram : AIR1928All641 decided by a Full Bench of this Court on 3rd July 1928, it has been held that, where without a registered instrument having been executed, the mere fact that mutation had taken place and possession taken by a party, the absence of registration cannot be cured by virtue of what is known to English law as the doctrine of part performance. This decision is applicable to this case in principle.
15. We hold that the defendant is not entitled to remain in possession of this property in virtue of the doctrine of part performance. We hold that Jagtamba Prasad Singh was quite competent to gift the property to Mt. Parshad Kuar subject to a defeasance clause which was to be operative upon the happening of a certain contingency. As that contingency has happened in this case, the plaintiff is entitled to recover possession of the property from the defendant together with mesne profits. The Court below was in error in holding that the property was the stridhan property of Mt. Parshad Kuar at the date of her death. In view of the terms of the deed of gift Mt. Parshad Kuar ceased to be the owner of this property at the date of her death and no rights could devolve upon the defendant-respondent by the rule of inheritance.
16. The result is that we allow the appeal, set aside the decree of the Court below and decree the plaintiff's suit for possession and mesne profits with costs both here and heretofore.