1. This second appeal by the plaintiff is against the concurring judgments of the courts below. She sued for a declaration against the defendants, of whom the first was her son who had pendent lite died, and the others were the Union of India, and the Deputy Custodian of Evacuee Property, that a deed of gift executed by her on 4-8-1943, was not valid but void. There is no dispute that she owned the property which was the subject-matter of the gift. The ground on which she wanted the declaration was that the gift was subject to a stipulation and (sic) she was entitled to revoke it as her son the donee failed to fulfil the stipulation. She also asserted that the gift was not completed by delivery.
The courts below found against the plaintiff on both the points. There was a further point in the plaint that, weak as she was in age and mind, she was made to execute the gift in favour of her son. But this was not decided by the lower appellate court, and on verification it is found that not even a ground was taken on that point in the lower appellate court. Though, for the appellant here, the point was Reiterated, in view of what I have just now said I do not think it necessary to consider this aspect, in this appeal. On those findings and on the ground that the suit was not maintainable under Section 46 of the Administration of Evacuee Property Act, 1950, the suit was dismissed and the plaintiff's appeal also failed.
2. On the view I take on the nature and tenor of the gift deed and on the question of the delivery of possession and the right of the donor to revoke a gift, it is not necessary to consider the maintainability of the suit under Section 46 of the said Act. It is argued for the appellant that the gift contained a stipulation and it was not, therefore, an absolute gift. But it seems to me that what learned counsel for the appellant styles as a stipulation in that gift deed, is no more than a mere desire or expectation on the part of the donor that her son would maintain her. In the gift deed she stated that out of love and affection for him and in the expectation that, as a son, he would maintain her, she made a gift of the property to him. That, in my view, as not a stipulation. A stipulation should be a demand as part of the bargain or agreement. Nowhere in the gift deed does it appear that the donee undertook to maintain her.
Learned counsel for the appellant strongly relied on Mogulsha v. Mohamed Saheb, ILR 11 Bom 517 in support oil his contention that even a desire of the donor, as in this case, can be regarded as a stipulation. In that case, it is true two teamed judges of the Bombay High Court were of the view that a recital that the donee's father had protected the donor and that she gave him the property in full confidence that he would continue to do so, was a stipulation. What the actual terms of the gift deled were in that case do not appear from the report of the judgment. If all that the deed in that case had mentioned was only that the donor gave the property in full confidence that the donee would continue to maintain her, I for my part, with due respect to the learned Judges of the Bombay High Court, am not able to concur that it amounts to a stipulation. A stipulation, in my view, is something more than an expression by the donor of a confidence of that nature in the done or a desire or a wish or an expectation that the donee would maintain the donor. A stipulation means, according to the Concise Oxford Dictionary, demand as part of bargain or agreement. Even by acceptance of the gift, as it seems to me, It cannot be taken that the donee lifted the desire to the position of an undertaking by him to maintain the donor. Learned counsel for the appellant also referred me to Shepherd v. Harrison, (1869) 4 QBD 196. But I think, this case is of no assistance to him. in my opinion, the courts below were right in holding that the gift was en absolute one and had no stipulation such as would entitle that donor to revoke the gift.
3. The Second contention for the appellant is that there was no delivery of possession to complete the gift. The subject-matter of the gift was a house in which the donor, her five daughters and her son the donee were residing at the time the gift was made by her. The words in the gift relevant to delivery of possession are:
Intha inam sasanam mulam aandanwbavikkumpadiya gavum ippoluthe vittukkoduthirukkiren. Inru muthal sarva suthanthira baddiyamai than ishtampol aandanabavithu kkolvsiagavum.
I think these word's are clearly expressive of the fact that the donee was put in such possession as the property was capable of. The requirement of delivery, to constitute a valid gift under the Mohammedan law, is not that, irrespective of the circumstances, there should always be physical delivery. The requirement is only that there should be such delivery to the donee as the property which is the subject-matter of the gift is capable of. In view of the fact that the donor and the donee were, at the time of the gift, residing in the house, the recitals extracted above from the gift deed are enough to indicate that the donee was put in possession of the house, such possession as it was at that time capable of. In 'order to make a valid gift, by completing delivery, it was not necessary that the mother should immediately go out of the house.
As Mulla on his 'Principles of Mohammedan. law' points, out, no physical departure or formal entry is necessary in the case of a gift of immoveable property in which the donor and the donee are both residing at the time of the gift, and in such a case, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. The recital in the document as to the delivery of possession to the donee is such an overt act. It is not necessary that in addition to such a recital, there should be same other overt act. Where some such other overt act can reasonably be expected, it may perhaps he necessary. What delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case.
But the contention for the appellant is that at the time the gift was made, not only the mother but also her five daughters Were living in the house, that, under the Mohammedan law the mother was obliged to maintain the daughters, and that being the case there was no effective delivery of the house to the donee or a valid gift of it made by her to her son. But the obligation of the mother was not on the property, which she was free to deal with either by sale or mortgage or gift. Merely because a Mohammedan lady had dependants whom she was obliged under the Mohammedan law to maintain, it did not follow that there was any limitation upon her capacity or right to deal with her own property, such an obligation being only personal to her consider, therefore, that the courts below were right in their opinion that the donee was put in such possession pursuant that the gift as the property was capable of.
4. The second appeal is, dismissed, but with no costs. No leave.