Arnold White, C.J.
1. This is a suit to recover possession of land. In 1897 the plaintiff, a Hindu widow, executed and registered a sale-deed of the land in question to her nephew. She retained possession of the deed but the nephew had notice of its execution and the tenant of the land in question attorned to him. The nephew died in 1901 and after his death, the plaintiff got the tenant to attorn to him. A few months later the nephew's mother and heir sold the land to the defendant.
2. The deed executed by the plaintiff purports to be an out and out sale to the nephew. The plaintiff states in her plaint that she executed the sale-deed with the object that the defendant (who is the nearest reversioner of the plaintiff's husband) should not obtain the property after her death. The District Judge finds that there was no consideration for the sale-deed by the plaintiff to the nephew. But that there was consideration for the sale by the nephew's mother to the defendant. He also finds that the plaintiff intended to give a title after her death though not in her life-time, in other words, that she only intended that the deed should be operative in the event of her nephew outliving her.
3. I think that the deed operated to convey to the nephew, the title which it purported to convey and that the plaintiff cannot be heard to say that she intended that title should not pass if the nephew predeceased her. If the parties intended title to pass, the fact that no consideration was paid, does not prevent title form passing Chinnasawmi Reddiar v. Krishna Reddy 16 M.L.J. 146. It may be that the plaintiff when she executed the deed did not contemplate the contingency of her nephew predeceasing her, but this, of course, does not prevent the title passing. It seems to me that the present case is distinguishable from the class of cases of which Yaramati Krishnayya v. Chundru Papayya 20 M.k 326 is an example, where the Courts held that the transaction was a sham and it was not intended that any title should pass. Here the finding is that the plaintiff intended that some title should pass though not the title which the deed purported to convey. Applying the test laid down in Ranga Ayyar v. Srinivasa Ayyangar 21 M.j 56 I do not think it can be said that in the present case both parties had it in their minds that the deed should be a mere sham. Ramalinga Mudali v. Ayyadorai Nainar 28 M.k 124 seems to me to be clearly distinguishable from the present case. There the Court held that the sale-deed was inoperative on the ground that both parties intended that the transfer should be effected only on the marriage of the vendor to the vendee's daughter, and the marriage never took place.
4. The circumstances in which a Court of equity will decline to give relief upon (i.e., will decline to treat as operative) a voluntary deed alleged to have been executed for a special purpose for which it was never required, are thus stated by Sir Thomas Plumer in Cecil v. Butcher 37 E.R. 744: 'I think there is a great preponderance of authority in support of the proposition, that in a case where a voluntary deed is made without the knowledge of the grantee when it is made for a special purpose for which it was never required to be made use of when it has been kept in the hands of the grantor without ever being acted on, a Court of equity will not relieve upon it.' In the present case the sale-deed was not made without the knowledge of the grantee, and it was acted on by the plaintiff's tenant attorning to the party in whose favour the deed was executed. It may perhaps be said that the attornment would be consistent with the plaintiff's case, but the fact remains that the deed was acted on. In the case of re Way's Trusts 34 L.J. Ch. 49 an unmarried woman made a voluntary assignment by deed of her reversionary interest under a settlement, the deed being irrevocable. The deed was duly executed, and attested, but it was not communicated either to the trustees of the settlement or to the trustees of the deed, or to any of the parties who were to take under it. The lady subsequently destroyed the deed and made a different disposition of the property by will. It was held that the assignor having done all that she could for transferring her interest, the assignment was effectual not withstanding the absence of notice. At the same time leave was given to file a bill to set aside the deed on the ground that the irrevocable nature of the transaction had not been explained to the lady. The deed of sale in the case before us was executed with the knowledge of the grantee and it is not suggested that the plaintiff did not understand its purport.
5. I think the Lower appellate Court was right and I would dismiss this appeal with costs.
6. On the District Judge's finding we have in this case a voluntary deed in favour of Gopal Pillai executed by the plaintiff with the intention that the property to which it relates should not pass to the transferee before the death of the transferor. We have the fact that the deed was duly communicated to Gopal Pillai though retained by the plaintiff in her own custody and never delivered and that it was acted upon to this extent that the tenant in possession executed an agreement to pay rent to Gopal Pillai, though whether he actually paid rent to him or to the plaintiff is not found by the District Judge.
7. In these circumstances it is clearly not enough for the plaintiff to show that she did not intend a present transfer. Though the deed was without consideration she could not entitle herself to recall it by merely showing that she did not intend it to be operative.
8. It would be necessary for her to show that it was agreed between her and the transferee that the transfer should be revocable, or should be suspended or postponed until the happening of a given event.
9. The District Judge does not find the existence of such an agreement. Although the first issue does not expressly raise the question, and an agreement is not in the plaint expressly alleged, yet I think it may fairly be inferred from the averments in paragraph 4 of the plaint that the plaintiff's case was rested upon an agreement between herself and Gopal Pillai. I would call for a finding on the question whether such an agreement existed. If it did, I have no doubt the plaintiff ought to succeed as the defendant cannot, in the circumstances of the case, rely on want of notice or on Section 41 of the Transfer of Property Act.
The Chief Justice
10. I do not think this is a case in which a finding should be called for as it seems to me the plaintiff does not allege anything in the nature of an express agreement between the transfer or and the transferee that the transfer should be revocable or should be contingent on the happening of a given event.
11. The result will be that the second appeal will be dismissed with costs.
12. There being a difference of opinion between the learned Judges whether a finding should be called for or not, an appeal under clause of the Letters Patent was preferred by the plaintiff-appellant.
13. We are of opinion that the question whether there was an oral agreement that the sale-deed (Exhibit--A), should not take effect until the plaintiff's death, and the further question whether such an oral agreement could be proved having regard to the terms of Exhibit --A do not arise, as no such agreement is pleaded. Under these circumstances we agree with the learned Chief Justice that no fresh finding is called for. Both the learned Judges have accepted the findings that Exhibit--A was not intended to be a mere sham and that it was even acted on to some extent.
14. There is no allegation that the plaintiff was induced by Gopal Pillai to execute Exhibit--A on the representation that he would hold the property for his benefit during his life-time such as might warrant the Court in imposing a trust upon him and his representatives. Under these circumstances we think the second appeal must be dismissed with costs throughout.