1. As I understand Exhibit 1, I feel no doubt that it is in terms an absolute gift deed of immoveable property, the denee's possession of which is postponed till the happening of a certain future event, namely, the death of the donor,
2. When the clause reserving1 to the donor a power of revocation at her mere will, which, if it had remained, would, under Section 126 of the Transfer Of Property Act, have invalidated the gift, was struck out from the draft deed by consent of the parties, all that conditional character which the draft possessed was taken away from the deed as finally executed.
3. The learned Judge was in error in thinking that because there is some ambiguity about the expression 'whereas the donee has served the donor faithfully for the period of ten years and upwards and wishes to continue his services to her', oral evidence could be let in to prove that future service was an essential condition of the contract. As in Madhavrao Moreshvar v. Kashibai Dattubhai 5 Ind. Cas. 599. the rendering of the services was not the consideration but merely the motive of the grant, and the motive in this case is immaterial. I consider that to introduce a condition into a document that is on its face an absolute and unconditional document, is substantially to vary its terms within the meaning of Section 92 of the Indian Evidence Act, Respondent's Counsel has attempted to support the lower Appellate Court's decision on the ground that the words 'to hold the same unto the donee as and from the date of the death of the donor', together with reference, to future services, indicated that the parties intended that no interest should vest in the donee until the death of the donor, and, therefore, that the attaching of a condition as to service during the donor's lifetime could be proved as a condition precedent to the gift taking effect.
4. I am of opinion that the above words only implied that enjoyment was deferred. The words 'doth hereby give, grant and convey unto the donee.' indicate that an immediate interest in the property was Vested in the donee as soon as he accepted the gift and the deed was registered. To bold otherwise would be tantamount to holding that the deed partook of the nature of a testamentary disposition, that this position has been abandoned as untenable from the beginning.
5. I, therefore, consider that oral evidence was inadmissible to prove that the 1st defendant was entitled to revoke her deed of gift, Accordingly the appeal is allowed and the District Judge will take back the appeal on his file for a decision on the issues other than issue No. 2. First respondent to bear her own and appellant's costs in this Court. Costa in the lower Appellate Court will be provided in the final decree.
1. I agree that Exhibit I is in terms an unconditional and absolute deed of gift. The operative words in it are not made subject to any conditions at all. The clauses beginning with 'whereas' are merely recitals of motives which led up to the making of the gift, but they do not affect the nature of the gift itself. Any expression of the intention of the parties that led to the making of the deed could not be taken to control clear and unambiguous dispositive words in it. See the observations of the Privy Council in Lalit Mohun Singh Roy v. Chukkun Lal Roy 24 C.s 834.
2. No doubt Exhibit I provides that the property is to be 'held unto the donee as and from the date of the death of the donor.' Considerable argument was addressed to us on the meaning of this expression. The learned Advocate for the respondent contended that it postponed the vesting of any right under Exhibit I till after the death of the donor and not merely the enjoyment of the property. I am unable to agree with him. As the clause just previous 'gives, grants and conveys' the property to the donee, consistently with that, I think, we must take it that the intention under the clause in question was only to postpone the enjoyment of the property and the vesting of rights took place as soon as the deed was executed and registered and the gift was completed. The point is of importance in considering whether oral evidence was admissible to show that the parties had agreed that the deed should fail if the donee did not serve the donor till her death. If it is an agreement in defeasance of the gift, as it must necessarily be taken to be if the right to the property vested in the donee on execution of the deed and only the enjoyment was postponed, admittedly Section 92 of the Evidence Act will prevent oral evidence of it being given. It was argued that the condition to serve till the donor's death was a condition precedent to the vesting of any right under Exhibit I and so could be proved by oral evidence under Section 92, Clause (3). 1 am unable to agree with this argument, as I think that the right in the property at once vested in the donee under Exhibit land it was only the possession and enjoyment of the property that was postponed. The deed of revocation executed by the donor shows that she herself understood that only possession was postponed.
3. It was also urged that because Exhibit I says that the donee was wishing to continue in the donor's service, oral evidence was admissible to prove that the deed was a conditional one. It is difficult to follow this argument. Under what proviso to Section 92 such evidence is admissible is not stated. There is nothing ambiguous in the gift itself under Exhibit I that requires to be explained by oral evidence. I have already held that statements of motives for making a gift are not relevant in considering whether a gift is absolute or conditional. I hold that oral evidence was not admissible to show the deed was revocable by the donor if future services were not rendered by the donee; and, therefore, the finding of the District Judge on that evidence fails. I find that the deed of gift is an absolute one.
4. I, therefore, agree to the order proposed by my learned brother.