R.S. Narula, J.
1. This is the plaintiffs regular first appeal against the judgment and decree of the Court of Shri Charan Singh Tiwana, Subordinate Judge 1st Class, Bassi, dated February 14, 1958, whereby he dismissed the suit of the appellant for a declaration to the effect that the gift deed executed by him and registered on April 30 1957 regarding his agricultural property and residential house was void and ineffective against the plaintiff's rights of ownership and possession, and the gift deed was merely a paper transaction as (i) the gift deed had been got executed fraudulently by taking undue advantage of the mental and physical rendition of the plaintiff, and (ii) the possession of the property had not been delivered to Nihal Kaur respondent No. 1 (the alleged donee), and the entire proceedings relating to the gift were a mere paper transaction on the solitary ground that no suit for such a declaration was maintainable under Section 42 of the Specific Relief Act and that the only suit competent for obtaining the above said relief would be a suit under Section 39 of the Specific Relief Act (1 of 1877) (hereinafter called the Act) for cancellation of the gift deed The abovesaid declaratory suit which was instituted by the appellant (hereinafter called the plaintiff) on July 2, 1957 was contested by Nihal Kaur (hereinafter referred to as the contesting defendant) on inter alia the around that a suit for a mere declaration without consequential relief in respect of possession of the property and cancellation of the gift deed was not maintainable Whereas the plaintiff claimed to have continued in possession of the entire agricultural land, a Dart of which was under mortgage with possession with Dalip Singh respondent No. 2, and also claimed to be himself residing in the house which was the subject-matter of the alleged gift, the defendant denied those allegations and alleged that except for the land which was under mortgage, the remaining land was inpossession of the tenants from whom the contesting defendant had got batai.
Regarding the house it was alleged by the contesting defendant that she along with her husband continued living in the house as before along with the plaintiff and in this way she had got into possession of the gifted property. From the pleadings of the parties, the trial Court framed the following preliminary issues:
1. Whether the suit is maintainable.
2. Whether a suit for mere declaration lies.
2. The parties produced evidence on the question of possession. After discussing the said evidence in a somewhat sketchy manner under issue No. 2, the learned Subordinate Judge held that it was 'highly doubtful as to whether the plaintiff was in possession of the house on the date he filed the present suit or not. He, however, held that though 'the plaintiff could seek merely a declaration of title if he could bring his case within the ambit of Section 42 of the Specific Relief Act' the suit was not maintainable in the form in which it had been filed because of his finding on issue No. 1 to the effect that the plaintiff should have sued under Section 39 of the Act for cancellation of the gift deed. The observation on which the finding of the trial Court on issue No. 1 is based is contained in the following Passage.
'In the present case the document being a registered one it is the plaintiff who is to prove certain circumstances which can render it invalid The opinion expressed by Chitaley and Rao in the Commentaries on Court-fees Act Second Edition, page 153 also is to similar effect. It is mentioned therein that if the plaintiff has been a party to the instrument sought to be avoided and the instrument is not absolutely void he must sue for its cancellation in such a case, unless and until the instrument is set aside by the Court it will be binding on the plaintiff Hence a mere suit for declaration that it is not binding on the plaintiff will not be competent. In such a suit, therefore, the indication is that the suit is one for cancellation and not for mere declaration. Thus the appropriate relief for the plaintiff in the present suit is a cancellation of the gift deed. It is, therefore, held that suit, as framed by the plaintiff, is not maintainable. He should have sued under Section 39 of the Specific Relief Act for the cancellation of the gift deed.'
3. Our first reaction to the proceedings conducted in this case in the trial Court is that the frame of the preliminary issues was not proper A definite issue on the disputed question of possession of the property should have been framed by the learned Subordinate Judge. Inasmuch as the parties appear to have been fully aware of the dispute relating to possession and inasmuch as both sides led extensive evidence on, that point, it is unnecessary to frame that issueand to remand the case for obtaining a finding on that point. It was firstly contended by Mr. M. R. Sharma, the learned counsel for the appellant that the trial Court erred in declining to record a definite finding on the question of possession and that the observation of the Court below to the effect that it was doubtful whether the plaintiff was in possession on the date of the filing of the suit is wholly incorrect. We have been taken through the evidence of the parties recorded on the preliminary issues. Plaintiff himself appeared as P. W. 1 and stated categorically that he was in possession of the land and the house in dispute and had never delivered possession thereof to the contesting defendant. He also explained that his possession over the land was through tenants who were giving him batai. (After discussing the evidence adduced by the parties in Paras 3, 4, 5 and 6, his Lordship proceeded:)
(7) From an appraisal of the evidence referred to above we find it impossible to arrive at any conclusion other than the one in favour of the plaintiff regarding his possession over the land and house in dispute at the time of the institution of the suit. In fact it is clear from the evidence already recorded in the case that the plaintiff never handed over possession of the property in dispute to the contesting defendant in pursuance of the impugned gift.
(8) Having found the plaintiff to have continued in possession of the entire property in dispute after the making of the alleged gift and not to have handed over possession thereof in any manner to the contesting defendant, all that remains to be considered is whether the declaratory suit of the plaintiff as laid is maintainable or not. In deciding this point we may not be taken as having indicated in any manner on the merits of the controversy between the parties as far as it remains to be settled. We are taking notice of the fact that the declaratory relief claimed by the plaintiff is founded on two grounds, viz: (i) that possession not having been delivered, the gift remained ineffective; and (ii) that the alleged gift is void as it was brought about by fraud, undue influence, collusion etc, only for the purpose of disposing of the preliminary issues.
(9) For the purposes of deciding whether the suit as framed is maintainable or not, we have to assume the allegations made in the plaint to be correct. The property in dispute is situated in the area which formed part of the Patiala and East Punjab States' Union prior to the merger of that Union with the then existing State of Punjab on November 1, 1956 There was no law corresponding to the Transfer of Property Act in Pepsu. The provisions of Section 123 of the Transfer of Propertv Act (4 of 1882) were extended on and with effect from May 15, 1967. by notification No. 305-ST-57/2166of that day published in that day's Punjab Gazette, Extraordinary, to the territories which immediately before November 1,1956. were comprised in the State of Patiala and East Punjab States' Union. The gift deed which is in dispute in the present suit was executed and registered on April 30,1957. The provisions of Section 123 of the Transfer of Property Act are, therefore, not applicable to the gift in dispute and the mere registration of the gift deed does not make the gift complete or effective. The position regarding a valid and effective gift being made in the Punjab, in the absente of the applicability of Section 123 of the Transfer of Property Act, appears to be the same under the Hindu Law as in cases governed by the Customary Law. 'Gift consists in the relinquishment (without consideration) of one's own right (in property) and the creation of the right of another; and the creation of another man's right is completed on the other's acceptance of the gift but not otherwise.' (Paragraph 356 of Mulla's Hindu Law). In paragraph 358 of Mulla's Hindu Law (thirteenth edition by S. T. Desai) it is stated as follows:
'(1) A gift under pure Hindu Law need not be in writing. But a gift under that law is not valid unless it is accompanied by delivery of possession of the subject of gift from the donor to the donee. Mere registration of a deed of gift is not equivalent to delivery of possession; it is not therefore sufficient to pass the title of the property from the donor to the donee. But where from the nature of the case physical possession cannot be delivered, it is enough to validate a gift if the donor has done all that he could to complete the gift, so as to entitle the donee to obtain possession.
(2) As regards Hindu gifts to which the Transfer of Property Act, 1882, applies, the rule of pure Hindu Law that delivery of possession is essential to the validity of a gift is abrogated by Section 123 of that Act. Under that Act delivery of possession is no longer necessary to complete a gift, nor is mere delivery sufficient to constitute a gift except in the case of movable property.'
(10) I have already held above that Section 123 of the Transfer of Property Act does not apply to the impugned gift. For holding that the position is the same even under the Customary Law of Punjab, I rely upon paragraph 60 of Rattigan's Digest of Customary Law, where it is stated that under the Customary Law in Punjab a gift in order to be valid must ordinarily be followed by possession, and must be free from undue influence. In Chaudhri Lila Kishen v. Chaudhri Hoa Ram, 45 Pun Re 1901 it was held that the primary rule of decision in a case of a gift in the Punjab is custom and possession is ordinarily necessary 1o complete it. In Dhani Ram v. Legha, ATR 1934 Lah 858 it was held that where the donor has done every thing in his power tocomplete a gift, then the non-delivery of actual possession does not necessarily invalidate the gift, but where the property is capable of physical possession and the donor has repudiated the gift soon after the execution of the deed of gift, the non-delivery of actual possession makes the gift invalid The learned Judge held that mere registration of a deed of gift is not equivalent to delivery of possession and regisration alone, is, therefore, not sufficient to pass the title in the property from the donor to the donee. The allegation of the plaintiff in the instant case is that beyond getting the gift deed registered the plaintiff did not do anything to pass the title of the property though the property was capable of physical possession in the sense that the house could be handed over to the contesting defendant and the tenants on the agricultural land could be attorned to her. Still what has been found by us to have happened is that neither the possession of the house was delivered to the contesting defendant nor the tenants on the agricultural land were attorned to her. If the plaintiff succeeds in proving at the trial of the suit that the title of the property in dispute had not passed in law to the contest-ins defendant irrespective of and in spite of the alleged execution and registration of the gift deed, he need not specifically ask for the cancellation of the gift deed. If he succeeds in this part of the claim it may not in fact be necessary for him to prove that the gift was founded on fraud or undue influence.
(11) We also find force in the argument of Mr. M. R. Sharma based on the judgment of a Division Bench of this Court (Dua and Mahajan. J. J.) in Sheel Kumar v. Aditya Narain. (1964) 66 Pun LR 916 that a prayer for cancellation of the deed consequent on the declaration of a document as representing a sham transaction is purely a surplusage, and that ff it is found as a fact that what was represented to be done by the document did not in fact exist, nothing remained to be cancelled. The trial Court has relied on Section 39 of the Specific Relief Act (1 of 187(sic)) The said provision is in the following terms:
'Any person against whom a written instrument is void or voidable who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury may sue to have it adjudged void or voidable: and the Court may in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Indian Registration Act the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of Its cancellation.' The plaintiff in the present case has claimed a declaration for adjudging the disputeddocument to be void. In our opinion it is not necessary for the plaintiff in a case where he claims a document to be void to specifically ask for the document to be delivered up and cancelled If the Court finds that the claim made by the plaintiff is correct and adjudges the document to be void or voidable, it is in the discretion of the Court to direct the document to be delivered in and to cancel it. In case of cancelling a registered document the second half of Sec 39 also comes into play.
A Division Bench of the Patna High Court (Harries C. J. and Fazl Ali J.) held in Bulakram v. Ganga Bishun Chaudhuri. AIR 1940 Pat 133 that a plaintiff may bring a suit for a declaration that a document is void without seeking its cancellation, and if he does so. it is open to the Court though there is no prayer for it to order the document to be delivered up and cancelled We are in respectful agreement with the law enunciated by the Patna High Court in the abovesaid case. It was also held by Jai Lal J. In Banta Singh v. Diwar. Singh. AIR 1929 Lah 11 that where the property was not in possession of either party but was partly in possession of the tenant and partly in possession of the mortgagee the plaintiff questioned the genuineness of a will on the basis of which the defendant claimed the title to the property in issue he need not sue for the cancellation of the will, but can merely claim a declaration of title. In this state of law, the trial Court appears to have fallen in grave error in holding that the present suit was not maintainable as the plaintiff had not specifically claimed for cancellation of the gift deed.
(12) Mr. Harbans Singh Gujral, thelearned counsel for the contesting defendant,submitted that his only objection was thatad valorem Court fees should have beenpaid on the plaint and it is only for that purpose that he presses into service the objection as to the form of the suit and that hedoes not mean to contend that the suit asframed is liable to be dismissed as notmaintainable. It is settled law that the question of Court fees is principally a matterbetween the litigant and the State. Moreover what we have to deal with is the question of maintainability of the suit as framed. We find that in substance the plaintiffhas claimed in the suit that it may be declared that there is n(sic) completed gift forwant of delivery of possession and thateven if it is found that possession had beendelivered and the gift was complete it maybe adjudged to be void as having beenbrought about by fraud and undue influence. Even Mr. Gujral could not contendthat such a suit is not maintainable.
(13) For the foregoing reasons we allow this appeal with costs, set aside the judgment and decree of the learned Subordinate Judge and remand the suit to the trial Courtfor hearing and disposal on merits. The parties have been directed to appear in the trial Court on November 27. 1967.
Mehar Singh, C.J.
(14) I agree.