1. This is a plaintiff's appeal against an appellate decree of District Judge Gurdial Singh dated 20-2-1948 reversing the decree of the trial Court and dismissing the plaintiff's Suit but leaving the parties to bear their own costs throughout.
2. The disput out of which this appeal has arisen is between the widow of the last male holder and his sisters on 22-1-1936 Murari Lal gifted the property in dispute which consistedof two houses in Abehar Mandi to his motherThe gift was an oral one and a report wasmade to the Patwari and the mutation' was Sanctioned on 24-2-1936. It appears that possession still remained of Murari Lal with whothe mother was living. Soon after the gi(sic)Murari Lal married the plaintiff Parkash Va(sic)On 17-5-1937 Murari Lal died. There is nothingon the record to show that Parkash Vati plainttiff did continue to live in the house after the death of her husband.
3. On 19-6-1945 the mother, Mst. Budha(sic) gifted the property to her daughters, May Devi and Shiv Devi. The plaintiff as widow (sic) Murari Lal brought a suit on 1-8-1946 for po(sic) session of one of the houses in Abehar, the other having been sold away. Several defence were raised but the suit was decreed. The trial Court held that Section 123, T. P. Act which has been extended to Municipal Committees of the Punjab had not been complied with and there fore there was no proper gift. On appeal the learned District Judge seems to have gone into all kinds of questions of the sham nature of the transaction and he allowed the appeal holding the parties to be in 'pari delicto.'
4. In appeal Mr. Gosain in the forefront of his argument has put the legality of the gif (sic) By notification No. 183-St. dated 27-4-1935 under Section 1, T. P. Act Section 123 was extended to a Municipal Committees of the Punjab. The relevant portion of Section 123 is as follows:
'For the purpose of making a gift of immovable able property, the transfer must be effected by a registered instrument signed by or of behalf of the donor, arid attested by at least two witnesses.'
Therefore in order to make a valid gift it wasnecessary that there was a written instrumentsigned by or on behalf of the donor and attestedby two witnesses and registered. Such a deeddoes not exist in the present case.
5. In reply to this argument Mr. Tek Chand' has submitted that the gift having been acted upon even though it was an imperfect gift it cannot be set aside at the instance of the heirs of the donor. But in the present case there is no question of imperfect gift. A gift cannot be proved because of the want of a registered deer and there is nothing to show that possession was given to the mother. A further point was raised by Mr. Tek Chand that the donor was estopped. This is a mixed question of fact and law which was never pleaded before and cannot he allowed to be raised at this stage. I would therefore allow this appeal, set aside the decree of the appellate Court and restore that of the trial Court. The appellant will have her costs of this Court. The costs of the other Courts will be as ordered by the learned District Judge.
6. I agree.