1. This is a first appeal by Nozi and her sons Lichmichand and Ganeshmal against the dismissal of their suit by the Civil and Additional Sessions Judge, Merta.
2. The case of the plaintiffs appellants was that one Shivnarain deceased was the maternal-uncle of Mst. Nozi. She used to look after him in, his old age, and consequently he was pleased with her. To show that pleasure, he gifted a house belonging to him to Mst. Nozi and her sons who are the three plaintiffs in the suit.
The gift deed was written on 27-4-1944, and registered on 29-4-1944. Shivnarain continued to live in the house in dispute with the consent of the plaintiffs till he died in December, 1944. Defendant Mohanlal had come to Jaswantgarh, where Shivnarain used to live and where the house is situate, some months before Shivnarain's death when Shivnarain was ill, and had stayed with Shivnarain for sometime. Thereafter, he had gone away leaving his wife with Shivnarain. The defendant cams again to Jaswantgarh after the death of Shivnarain, and began to live in the house.
The plaintiffs asked him to vacate the house. He agreed to do so after sometime, and also agreed to pay Rs. 5/- as rent. Later, however, the defendant refused to vacate the house. Consequently notice was given to the defendant on 31-5-1946. As the defendant did not vacate the house even thereafter, this suit was filed in March, 1949. The plaintiff's prayed for possession of the house which was valued at Rs. 5000/-, and also for a sum of Rs. 190/- for use and occupation of the house at the rate of Rs 5/- per month.
3. The suit was resisted by the defendant. His case was that he was the adopted son of Shivnarain and that there was no gift deed by Shivnarain in favour of the plaintiffs. He also said that he and his wife were looking after Shivnarain and nob Mst. Nozi. He denied that he had ever agreed to pay Rs. 5/- p.m. as rent to the plaintiffs for the house, and said that he was in possession of it in his own right as the adopted son of Shivnarain. He further alleged that the gift deed was invalid as Shivnarain never handed over possession of the house to the plaintiffs; nor did he hand over the title deeds relating to the house to them.
He also pleaded that there was a joint Hindu family consisting of Shivnarain's brother Jagan-nath's widow. Shivnarain himself, his other brother Asaram, and the defendant who was the adopted son of Shivnarain, and as such Shivnarain could not make a gift of this house which was the property of the joint family.
4. On these pleadings, the following issues were framed by the court below:
1. Did the deceased Shivnarain make a gift of the house in question in favour of the plaintiffs?
2. Is the house in question a pait of the coparcenary, property and so the gift is invalid?
3. Did the deceased Shivnarain make the gift of this house for legal necessity?
4. Is Mohanlal the adopted son of the deceased Shivnarain and is his adoption valid even without a registered document on the ground that it was executed in Hyderabad?
6. Was the possession not delivered at the time of the gift and so the gift is invalid?
7. Whether the defendant took the house in question from the plaintiffs on rent of Rs. 5/- p.m. and so the plaintiffs are entitled to recover Rs. 190/- on account of rent from him?
8. Is the value of the house in question Rs. 15,000/- so the court fee is insufficient? If so how much?
The trial court held that Shivnarain had made a gift of the house, and that the house was the personal property of Shivnarain, and not the property of any joint family. The issue as to legal necessity was meaningless, for there could be no question of any legal necessity in connection with a gift, and therefore the issue was not pressed.
The Court also held that the adoption of Mohanlai was not valid for want of. a registered instrument. It further held that the house was not taken on rent by Mohanlai on Rs. 5/- per month as alleged by the plaintiffs. It also held that the house was valued at Rs. 5000/-, and there was no deficiency in court fee. Finally it held on issue No. 6 that as the possession of the house was not delivered to the plaintiffs at the time of the gift, the gift was not valid under the Hindu Law. It, therefore, dismissed the suit after deciding issue No, 6 against the plaintiffs.
5. The plaintiffs in this appeal have urged that the decision of the court below on issue No. 6 is incorrect, and that in all the circumstances of the case it must be held that the gift was valid.
The defendant respondent, on the other hand, has urged that the decision of the trial court that the house in question was not the property of the joint Hindu family consisting of Shivnarain and others was incorrect, and that the decision on the question of adoption of Mohanlal was also incorrect. The decision on the other issues is not being challenged by either party.
6. Thus the three points that require determination in this appeal are:
(1) Whether the house in dispute was part of joint family property, and so the gift was invalid?
(2) Whether Mohanlai was the adopted son of Shivnarain, and whether the adoption was valid?
(3) Was the gift invalid inasmuch as possession of the house was not delivered to the plaintiffs by the donor?
7. Point No. (1).
As to the question whether the house in dispute is joint family property, and therefore Shivnarain could not gift it away, there is only oral evidence on the point on behalf of the defendant. This oral evidence shows that Jagannath. Asaram and Shivnarain were three brothers. Jagannath apparently died long ago. The Patta of the land on which the house stood, Ex. D 4 was in the name of Shivnarain, and his brother Asaram, and is of 1933.
The value of the site Was only Rs. 35/-. Though the witnesses for the defendant have said that the brothers were joint and their property movable and immovable was joint, it does not appear that therewas any immovable property besides this house. Shivnarain apparently used to dabble in speculation. Besides the presumption that brothers are usually members of a joint Hindu family, there is nothing to show that in reality Jayannath, Asaram and Shivnarain were members of a joint Hindu family, and that the joint family possessed any immovable property including this house. The fact that the Patta was taken in the name of two brothers does not necessarily establish that the brothers were members of a joint Hindu family. The two could have been owners in common, and after the death of Asaram his brother Shivnarain would naturally succeed to him.
We are not, therefore, impressed by the oral evidence which has been produced by the defendant to show that there was any joint family of which Shivnarain was a member. We may in this connection refer to the statement of Madangopal D. W. 1. He has definitely stated that whatever property Shivnarain had was his self-acquired property. In view of this statement of a witness for the defendant himself, we come to the conclusion that this house was the self-acquired property of Shivnarain, and was certainly not joint family property.
Further Lichman Ram D. W. 7 stated that the house in dispute was built by Shivnarain sometimes in 1946. There is nothing to show that at that time Asaram was alive, or that there was any contribution by the defendant in the building of the house even assuming that he is the adopted son of Shiv Narain. The defendant has certainly said so in his statement; but the evidence does not satisfy us that he had any sizable income in 1946 or before that to contribute towards the construction of this house.
8. We, therefore, agree with the court below that the house in dispute was the property of Shivnarain, and was not the property of any joint Hindu family of which Shivnarain was a member. We are not prepared to accept that Shivnarain was member of any joint Hindu family with his brothers. We decide the point accordingly against the defendant.
9. Point No. (2).
We do not think it necessary for purposes of this appea] to decide the question whether the adoption of Mohanlai was valid or not. We shall proceed in this appeal on the assumption that the adoption was valid.
The question can be brought out properly between Mohanlai and any one who assails his right to succeed to the property of Shivnarain other than this house. We, therefore, leave this question of adoption open.
10. Point No. 3.
This is the main point which requires determination in this appeal. The plaintiffs have not produced the gift deed in question. Their contention was that the gift deed had been stolen. Later, however, they amended that and said that the gift deed and the title deeds to the property were in the house in which Shivnarain lived, and that these were somehow taken away by the defendant, and that was how the defendant produced the Patta of the house.
It is, however, clear from the perusal of the copy of the gift deed which has been proved that it is a registered document attested by three witnesses. Now under Section 123 of the Transfer of Property Act, such a deed would convey the property by gift, for Section 123 merely requires that the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Unfortunately, however, the Transfer of Property Act was not in force in theformer State of Marwar from which this case comes at the time when this deed of gift was executed.
The contention on behalf of the defendant was that as the Transfer of Property Act was not in force, the gift was not complete except as provided by Hindu Law, i.e. there must be delivery of possession when the gift is made. Now gift under Hindu Law is defined in Mulla's Principles of Hindu Law, 11th Edition, page 456, as follows:
'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 that other's acceptance of the gift, but not otherwise.'
This definition does not show that delivery of possession is necessary to making a gift complete. All that is necessary is the relinquishment by one person, and acceptance by another. The matter has been explained in Mayne on Hindu Law and Usage, 11th edition, at page 861, as follows:
'Apart from the Transfer of Property Act, it has generally been held that under Hindu law, delivery of possession is essential to complete a gift even though it is by a registered instrument. It would be more correct to say that according to Hindu law, acceptance by the donee is essential to the validity of a gift and delivery or taking of possession is but one of the modes of acceptance.'
It may be conceded that the law in what was formerly British India, as it developed, made delivery of possession of the essence in the matter of a gift under Hindu law. The reason for that was that a gift under Hindu law could be oral & no writing was required. In such circumstances, the unequivocal intention of relinquishment by one person and acceptance by another would generally be evidenced by change of possession. It is in this sense that it may be said that under Hindu Law delivery of possession was necessary for making a gift complete.
11. We may in this connection refer to Kali Das Mullick v. Kanhya Lal Pundit, 11 Ind App 218 (PC) (A) which is a case before the Transfer of Property Act came into force. In that case it was urged that as the donor was out of possession and never gave possession to the donee, the gift was invalid. Their Lordships disposed of this argument in these words:
'In the Respondent's reasons it is broadly stated that the deed of gift was utterly invalid, inasmuch as the donor was out of possession, and no possession was ever given to the donee. But it must be observed that in this case the dispute as to the validity of the gift is not between the donee and the donor or a person claiming under her. The donor is a Defendant, and affirms the validity. The person who disputes it claims adversely to both.'
Later their Lordships went on to say that where the donor had done all she could to complete the gift, and was a party to the suit and admitted the gift to be complete, no further question of delivery of possession arose.
This case therefore shows that delivery of possession is not of the essence of a gift under Hindu Law, the essence being relinquishment of title by one and acceptance of the gift by the other; but delivery of possession has been considered by thecourts as an important circumstance to show that the two essential ingredients of a gift are present.
12. A large number of cases were cited by learned counsel on this point as to whether delivery was essential under Hindu Law. It is enough to say that the trend of authorities certainly is that delivery has been considered of paramount importance; but, at the same time, the authorities show that where there is a registered deed of gift, verylittle evidence has been required to hold that therewas delivery of possession, particularly where the donor never questioned the gift in his lifetime, or supported the gift in case he was alive when the dispute arose.
It is only in those cases where the donor himself did something to show an intention different from that appearing from the deed of gift that the question of possession assumed serious importance. For example in Chandrabhaga Bajirao v. Anandrao AIR 1938 Nag 142 (B), a question arose whether a certain registered deed of gift passed title to the donee. The case came from Berar, and was of a time when there was no Transfer of Property Act in force there. The facts were that after the registered deed of gift the donor first leased out the gifted property to third persons, and later sold it. In these circumstances, it was held that even though there was a registered deed of gift, the property did not pass to the donee for the donor had never made over possession of it. We would say that there was no relinquishment of the title by the donor. The mere fact however that the donor continued to live in the house gifted away would. not necessarily mean that there was no gift If other circumstances show the intention to gift away the property. We are, therefore, of opinion that where there is a registered deed of gift, the evidence required to show that the donor intended to gift the property, and had actually done so is very slight, particularly when the donor had done nothing after the gift and before his death to repudiate in any way the deed of gift. In such a case transfer of possession to the donee can be inferred even from the recitals of the deed, and other attendant circumstances, if there is nothing in the conduct of the donor after the deed to show that he did not mean to relinquish the property. The principle, therefore, at which we arrive is that where the Transfer of Property Act is not in force, and a gift is made by a registered instrument, and there is nothing to show that the donor, in any way, repudiated the gift in his life-time, the evidence required to show that there was such transfer of possession as would make the gift complete under the Hindu law would not be much.
13. We, therefore, proceed to consider whether in this case evidence is there to show that the gift was complete, and that the donor intended to gift the property, and had transferred the possession.
14. The plaintiffs' case is that Mst. Nozi was the niece of Shivnarain, and used to live with him and look after him. Defendant's witnesses also do not deny that Mst. Nozi used to stay with Shiv-narain at times. It is also in evidence that Mohan-lal was not there when Shivnarain died, though his wife was there. It seems, therefore, that after the execution of the deed of gift, Shivnarain continued to live in the house.
Mst. Nozi and her son Ganeshmal also lived with him, and the dispute only arose after his death between the donees and Mohanlal. In the deed of gift EX. P-1 the donor said that the Patta of the house was given by him to the donees, and that the donees were put in possession of the house. The gift deed also says that the donees can take out a new Patta in their name. It has been urged on behalf of the defendant that neither the Patta nor the gift deed was in possession of the plaintiffs, and this shows that the donor did not really intend to relinquish possession.
It is, however, clear that Mst. Nozi was living in the same house with the donor, and the plaintiffs' case is that the Patta and the gift deed were in the house, and that these documents were somehow taken control of by the defendant after thedeath of Shivnarain, though the plaintiffs originally believed that they had been lost. It seems to us that there is a good deal in what the plaintiffs say in this connection. The documents apparently were in the house where Shivnarain as well as Mst. Nozi was living, and it is quite probable that Mst. Nozi, a woman, was unable to bring them away after Mohanlal appeared on the scene after the death of Shivnarain. Ganeshmal's statement in this connection is that he asked his mother when she returned from Shivnarain's house where the deed of gift and the Patta were, and she told him that they had been lost.
The trial Court has put a great deal of stress on the statement of P. W. 5 Chunnilal to show that there was no delivery of possession. Chunnilal has stated in examination-in-chief that in Shivnarain's life the house was in the possession of Shivnarain and Nozi. In cross-examination, he said that Shivnarain did not give up possession of the house till he died. It is this statement in cross-examination on which the trial Court has concentrated without referring to his statement in examination-in-Chief. Beading the two statements together, we do not see any reason to hold that this means that Shivnarain never gave possession to Mst. Nozi.
Chunnilal has also said that Mst. Non was living with Shivnarain. This fact read with the recitals in the gift deed, namely that Shivnarain had made over possession to the donees and had given them the Patta and the gift deed, should, in our opinion, be sufficient to prove that possession was given to the donees by the donor, and should meet the requirements of Hindu law. The defendant's witnesses have certainly said that the plaintiffs were never in possession of this house; but Chogmal D. W. was driven to admit that Mst. Nozi was the niece of Shivnarain, and used to go to him often. We have, therefore no hesitation in accepting the evidence of the plaintiffs' witnesses that Mst. Nozi was living with Shivnarain before his death.
This fact coupled with the recitals in the gift deed, in our opinion, sufficiently show that Shivnarain relinquished his rights in the house, and the donees accepted them, and there was sufficient delivery of possession to satisfy the requirements of Hindu law.
15. We, therefore, hold that the deed of gift, on which the plaintiffs rely, is valid, and the plaintiffs' suit for possession must succeed. The plaintiffs claim for damages for use and occupation at Rs. 5/- p.m. appears reasonable. They are, therefore, entitled to a decree for this also.
16. We, therefore, allow the appeal, set aside the judgment and decree of the Court below, and decree the plaintiffs' suit for possession of the house. We also give them a decree for damages for use and occupation for Rs. 190/- up to the date of suit, and further give them a decree for damages for use and occupation at Rs. 5/- P.M. from the date of suit to the date of delivery of possession. The plaintiffs will get their costs in both Courts from the defendant.