R.K. Das, J.
1. This is a plaintiff's appeal against the concurrent decisions of the Courts below, arising out of a suit for declaration of title, and recovery of possession and for mesne profits.
2. Plaintiff is the wife of the defendant. Their marriage on 6-3-1952 is admitted. Plaintiffs case is that at the time of the marriage, her husband the defendant gifted the suit-property to her out of love and affection and later on executed the deed of gift (Ext. 1) which was duly registered and delivered to the plaintiff and she was in enjoyment of the property until 1956 when the defendant deserted her and unauthorisedly occupied the suit land. Hence the plaintiffs suit for the reliefs aforesaid.
3. The defendant denied the gift, though he admitted the execution and registration of the deed of gift. His case, however, is that before the marriage of the plaintiff, her father demanded five Tolas of gold from the defendant who agreed to give the same within twenty days of the marriage. As the defendant was unable to arrange the gold, the plaintiff's father did not allow her to come to the house of the defendant. Under permission of the plaintiff's father, the defendant agreed to execute the gift (gift Ex. 1) by way of security for the five tolas of gold demanded by the plaintiff's father. Ext. 1 was never meant to be treated as the deed of gift, nor did the defendant intend to divest himself of the property covered by Ext. 1. The plaintiff never accepted the gift her was the possession of the property ever delivered to her. A few weeks after the) execution of Ext. 1, the defendant gave to the the five tolas of gold and thus Ext. 1 which was meant to be treated as a security was automatically redeemed.
4. The trial Court came to the finding; (i) That the deed of gift was executed under undue influence of the father of the plaintiff: and (ii) That the donor never intended to divest himself of the property and there was no delivery of possession and thus the gift was not a valid gift and was not acted upon.
5. The appellate Court agreed with the findings of the learned Munsif, though he did not elaborately discuss the evidence on the questions at issue. The plaintiff's case was that Ext. 1 was delivered to her and it remained all along in her possession and she filed it in Court. There is no satisfactory explanation on behalf of the defendant as to how Ex. 1 came into possession of the plaintiff. On this question the appellate Court held that the plaintiff having lived for five years as wife with the defendant, it is no wonder that the gift deed remained with her even after she was abandoned by the defendant. Ext. I came from the custody of the plaintiff. In the said document there is absolutely no mention that the property was given by way of security for the defendant's failure to give five tolas of gold to the plaintiff alleged to have been promised at the time of marriage. On the other hand the recitals are specific that the property was given by way of gift. No doubt, the learned appellate Court relied upon a statement of the plaintiff in the previous maintenance suit filed by her that at the time of marriage the defendant gave her land of the yield-capacity of 20 puttis of paddy towards the gold, but the defendant himself possessed the land. She however repudiated the suggestion of the defence that she was given gold after execution of Ext. 1. This earlier statement of the plaintiff was relied upon by the learned appellate Court to give a go-by to the story of gift and as an admission that the possession of the property never passed to the plaintiff, but as I will discuss later on the appellate Court did not take into consideration the unequivocal admission of the defendant himself where he said that the usufruct of the gifted property was in fact being enjoyed by the plaintiff. That apart, the recital in Ext. 1 is clear and unambiguous. There it is stated that 'From to-day I hand over the property to you 'To Adhina Kali' which becomes your stridhan and my heirs and successors will not have any right over the same and I make this gift of my own accord and you shall enjoy the property according to your will etc.......' The defendant also admitted in his evidence that the plaintiff was enjoying the produce of the suit-land when she was residing with him. If in fact, the deed of gift was nominal and was never meant to be acted upon and the possession was never delivered to the plaintiff it is not understood why the plaintiff should enjoy the produce of the suit land. This very admission of the defendant goes a long way to support the plaintiff's story that not only Ex. 1 was delivered to her, but also the property covered under the said document. In the maintenance suit (M.C. 14/59) filed by her against the defendant, the defendant admitted therein that he did not execute the deed of gift under any pressure of his father-in-law and that the plaintiff was enjoying the produce of the suit-land covered under Ext. 1. This previous admission by the defendant is binding against him cannot be doubted (vide Padma Charan v. Commr., Hindu Religious Endowments Orissa, ILR (1961) Cut 183).
6. The learned appellate Court relied upon a decision of this Court reported in Jagannath Panda v. Dayanidhi Khadiratna, 26 Cut LT 371 and came to the conclusion that mere registration of a deed of gift does not pass title unless the donor divests himself of the property in favour of donee. No doubt, the test of a gift is whether the donor intended to divest himself of the property. In that case the entire property of the donor including his homestead was given away by way of gift to the wife and his Lordship was of the view that the husband would never have intended to divest himself of all his interest in respect of whatever property he had on earth, and particularly the homestead and chosen to live himself completely at the mercy of his wife taking the risk of being dispossessed from the residential house at any time. His Lordship thus took the view that the property was in fact not intended to be delivered to the donee. The crucial question was whether the donor intended to divest himself of the property. If in fact no such intention was there the question of actual delivery of possession would not arise in pursuance of such intention. That, however is not the case here. Here the property in suit is only agricultural land and represents a small portion of the estate of her husband, and the consideration that weighed in that case cannot have any application to the facts of the present case. The consideration that weighed with the learned appellate Court was that the plaintiff did not take any step to mutate her name and the name of the defendant stood recorded in the record of rights and he was paying rent for the suit land. But here it may be stated that not a single rent receipt has been filed by the defendant, though he claimed to have paid rent for the suit land. On this aspect of the case, the relationship of the parties has to be taken into consideration. The parties are not strangers, but are related as husband and wife. In ordinary circumstances, it is not improbable that the wife would have paid the rent through her husband and even might not have taken any steps to mutate her name. The mere fact that the plaintiff's name was not mutated is not decisive. In the aforesaid case in 26 Cut LT 371 the name of the wife had been mutated in respect of the lands covered under the deed of gift and the rent-receipts also stood in her name. But in spite of that His Lordship was of the view that that was not enough unless the intention of the donor is manifest that he wanted to divest himself completely of his interest in the property. In another unreported decision of this Court in M. A. No. 118 of 1962, Gory Satyarajulu v. T. C. Panigrahi (Ori.), Misra, J. held that 'the fact that after the deed of gift the wife has taken no steps for mutation of her name in respect of this house and her admission that in the Municipality the records still continue in the name of her husband, are by themselves, very, innocuous.' The wife need not be very particular for change of name of her husband in respect of the property in which she has acquired title and even if there would have been change of name, she would be paying the Municipal Tax through her husband.
7. In a case reported in AIR 1932 PC 13, Mahomed Sadiq Ali Khan v. Fakr Jahan Begam, their Lordships held that the gift of an immoveable property must ordinarily be completed by transfer of possession and in a gift by husband to his wife where the recitals in the deed show that the possession of the gifted property was delivered to the wife and the deed of gift itself was handed over to the donee, the declaration in the registered deed followed by the handing over of the deed were amply sufficient to establish a transfer of possession and the actual taking over of possession by the wife was not necessary. On the authority of this decision, it was rightly argued by Mr. Murty that the declaration in Ext. 1 as stated above coupled with the handing over the deed of gift in this case were by themselves sufficient to complete the gift and it was not necessary for the plaintiff to prove the actual taking delivery of possession by her. The fact that the parties in the aforesaid Privy Council case were Muslims does not make any difference and, this decision was also relied upon by Misra, J. in the Miscellaneous Appeal referred to above.
8. Section 123 of the Transfer of Property Act provides that for the purpose of making a gift of the immovable property, the transfer must be effected by a registered instrument and under Section 122 of the said Act, the gift would be complete when it is accepted by or on behalf of the donee. It was contended on behalf of the appellant that in cases where the registered deed itself is delivered to the donee that itself is sufficient acceptance of the gift by the donee to complete the transfer. In this connection, reliance was placed on a decision of the Calcutta High Court reported in AIR 1942 Cal 386, Purnachandra Chakravarty v. Kalipada Roy, where it was held that when the deed is delivered over to the donee immediately after execution, it would be sufficient acceptance of the transfer by the donee under Section 122 of the Transfer of Property Act, and the deed becomes effectual from the very moment of its execution subject to its being stamped and registered as required by law. It was contended by learned counsel for the respondent that thegift in the Hindu Law, to be valid must be accompanied by delivery of possession and the mereregistration is not enough. Learned counsel forthe appellant, however, urged that even in casesof persons governed by the Hindu Law the registration of the deed of gift is sufficient and thedelivery of possession of the property is not essential in view of the provisions of Section 123 ofthe T. P. Act and in this connection certain decisions were cited in support of the respective contentions.
9. Mr. Behura relied on ILR 9 Cal 854, Dagai Dabee v. Mothuranath, but there also it was held that a gift by a Hindu unaccompanied either by delivery of possession or any symbolical act such as handing over the documents of title or permitting the donee to receive rents, is not in itself a valid transaction even though the deed of gift be registered. In the present case, as we have seen above, not only the document of title was delivered but as admitted by the defendant, the plaintiff was receiving separately the usufruct of the suit-land. Thus, the decision cited on behalf of the respondent is of no avail.
10. In a case reported in AIR 1960 Mys 97, Revappa v. Madhava Rao, it was held by their Lordships that Section 123 of the Transfer of Property Act is applicable to gifts of immovable property made by persons governed by Hindu law and the section lays emphasis on the due execution of the instrument of the gift and not so much on the actual delivery of possession of the property and thus the delivery of possession of the property gifted is not an essential ingredient for validating the gift under the law.
11. Mr. Moorty, learned Counsel for the appellant urged that the case of the defendant being that the deed of gift was executed under undue influence and therefore it was void, it was open to the defendant to set aside the said instrument (Ext. 1) within three years under Article 91 of the Limitation Act. The deed of gift was admittedly executed on 29-3-52, but there has been no such suit filed by the defendant. There cannot be any doubt that if the defendant wished to challenge, the gift on the ground that it was executed under undue influence of the plaintiff's father and therefore void, he could have filed a suit within three years under Article 91 to set aside the said deed of gift. In a case reported in AIR 1945 PC 54, Ramchandra Jivaji v. Laxman Shrinivas their Lordships held that where the donor wished to make a gift and acted voluntarily in making it, hut the transaction was induced by undue influence, the gift is only voidable and requires to be set aside, before the property conveyed by it can be claimed by the donee or any one claiming through him, and in such cases Article 91 applies and time for setting aside the deed of gift would run from the date of gift. In this case it was from 29-3-1952, but nothing has been done by the defendant. Therefore, viewed from whatever pointof view the plaintiff's suit is bound to succeed.She, however would not be entitled to a decreefor mesne profits as she has not established herclaim to the quantum of mesne profits alleged inthe plaint.
In the result the appeal is allowed with coststhroughout.