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Sabjan Sahib Vs. M. Abdul Azeez Sahib and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in42Ind.Cas.684
AppellantSabjan Sahib;khaja Bi;khaja Bi;khaja Bi;jaitun Bi
RespondentM. Abdul Azeez Sahib and ors.;sabjan Sahib and ors.;s. Mahomed HussaIn Sahib and ors.;s. Mahomed Hus
Cases ReferredAshabai v. Haji Tyeb Haji Rahimtulla
account book, credit entry in, value of - presumption--proof--trustee, owner of fund, how can constitute himself--muhammadan law--gift--donor in loco parentis--possession, delivery of, whether necessary--chose in action, part assignment of, validity of--transfer of property act (iv of 1882), section 130--judicature act (1873), (36 & 37 vic. ch. 66), section 25. - abdur rahim, j.1. one chailabhai ibrahim sahib, who used to do business as commission agent in tanning and exporting hides, died on the 26th february 1909 at the age of 70 or thereabouts. he left as his heirs his widow khaja bi, one daughter jaitun bi and several sons and daughters of his brother. we have to deal with the appeals in the various suits which were instituted in connection with the deceased's estate. the first in order of time was civil suit no. 324 of 1909 in which appeal no. 54 of 1914 has arisen. the suit was to obtain a declaration that the plaintiff was a partner in the firm of chailabhai ibrahim sahib, sabjan sahib and co., that the firm was dissolved by the death of chailabhai ibrahim sahib, for accounts and other reliefs. the parties to this suit were sabjan sahib,.....

Abdur Rahim, J.

1. One Chailabhai Ibrahim Sahib, who used to do business as Commission Agent in tanning and exporting hides, died on the 26th February 1909 at the age of 70 or thereabouts. He left as his heirs his widow Khaja Bi, one daughter Jaitun Bi and several sons and daughters of his brother. We have to deal with the appeals in the various suits which were instituted in connection with the deceased's estate. The first in order of time was Civil Suit No. 324 of 1909 in which Appeal No. 54 of 1914 has arisen. The suit was to obtain a declaration that the plaintiff was a partner in the firm of Chailabhai Ibrahim Sahib, Sabjan Sahib and Co., that the firm was dissolved by the death of Chailabhai Ibrahim Sahib, for accounts and other reliefs. The parties to this suit were Sabjan Sahib, the plaintiff, one M. Abdul Azeez Sahib, the 1st defendant, and eight other defendants, the heirs and legal representatives of Ibrahim Sahib. The appellant Sabjan Sahib is found to have been a partner in the firm of Chailabhai Ibrahim Sahib, Sabjan Sahib and Co. since 26th August 1904 along with the deceased Ibrahim Sahib and M. Abdul Azeez Sahib the 1st defendant, who joined the firm as a partner on 13th April 1906. Civil Suit No. 56 of 1912 was instituted by Sabjan in order to establish his right to a sum of Rs. 50,000, which is alleged to have been made a gift of in his favour by Chailabhai Ibrahim Sahib in 1901, and for subsequent profits thereon. This question was also the subject of enquiry in Civil Suit No. 324 of 1909 and is dealt with in the judgment in that suit. The learned Judge having found against this claim of Sabjan, Appeal No. 54 has been filed by Sabjan to contest that finding. Appeal No. 87 also arises in the same suit and is by Khaja Bibi the widow, contesting the finding that a sum of Rs. 14,000 which was spent for the marriage of Sabjan Sahib should be debited to the estate of C. Ibrahim Sahib and not against Sabjan Sahib. Civil Suit No. 153 of 1910 was a suit instituted by the granddaughters of the deceased Ibrahim for the recovery of Rs. 1,00,000 from the estate of the deceased, on the allegation that this amount was made a gift of by him on the same date as the alleged gift in favour of Sabjan. No appeal has been filed against the decree of the learned Judge disallowing this claim. Appeal No. 58 of 1915 arose in Civil Suit No. 125 of 1914, which was a suit for partition instituted by the plaintiff S. Mahomed Hussain Sahib, one of the heirs of the deceased Ibrahim Sahib, being the son of his brother. The appeal is by Khaja Bi the widow of Ibrahim Sahib, who claims that Rs. 1,23,500 was made a gift of by her husband in her favour and did not form part of his estate.

2. By the preliminary decree in Civil Suit No. 324. of 1909 it has been held that i of the entire profits of the firm was to be allotted to the capitalists, and the remaining 2/3 was to be divided in certain proportions between the partners, that is, from 25th August 904 to 12th April 1906, 2/3 share to Chailabhai Ibrahim Sahib's estate and 1/3 share to Sabjan, and from 13th April 1906 to the date of the dissolution, which is the date of Ibrahim's death, 5/12 to Ibrahim Sahib's estate, 4/12 to Sabjan and 3/12 to M. Abdul Azeez Sahib. So far there is no dispute.

3. The question we have to decide in this appeal arose on the taking of accounts. That question is whether Chailabhai Ibrahim Sahib made a gift of Rs. 50,000 out of his capital in the firm to the appellant on the 12th August 1901. It appears that on that date the capital which belonged to Chailabhai Ibrahim Sahib amounted to Rs. 28,500. The most important and practically decisive question in all the appeals is, what is the nature and effect of the transaction evidenced by the entries made on that and subsequent dates in the names of the appellant Sabjan Sahib, his widow Khaja Bi, his daughter Jaithnn Bi and his two grand daughters by a daughter who had died before the 12th August 1901. Sabjan Sahib is the son of a sister of Khaja Bi, the deceased's widow. He was brought up by them from a very early age and they undoubtedly treated him as their own child. But apparently for sometime before Ibrahim Sahib died, both he and his wife were more or less dissatisfied with his conduct although he continued to live with them as a member of the family. In August 1901, an important date to remember, he was of the age of 13 or 14. Although he had his own father alive, it was Ibrahim Sahib and his wife that had the sole care of him and stood in loco parentis towards him. Ibrahim Sahib's daughter was then a major and had been married, his grand-daughters by the predeceased daughter were infants, one being one year and the other about 9 years old and were under the guardianship of their father. The only partner of Ibrahim Sahib in 1901 was one Azimuddin Sahib. Azimuddin Sahib seems to have brought in a capital of about Rs. 60,000. After setting aside 13 share of the profits on account of the capital of Rs. 2,85,000 which belonged to Ibrahim Sahib, of the remaining profits, Ibrahim was to have 2/3 and Azimuddin 1/3, Azimuddin Sahib ceased to be a partner in August 1904 and it was then that Sabjan was introduced in his place.

4. In the day book of the firm, under date 12th August 1901 the first entry in question is Debited to the (capital) account of Vaniambadi Ejaman Chailabhai Ibrahim Sahib what was paid to my wife Khaja Bi and Sabjan Sahib Rs. 1,00,000'. This is the proper translation and the translation as given in the paper book is not quite accurate, for instance, the word 'given' within brackets is wrongly inserted there. The Tamil word 'tharum' as used in the account books of these people means 'paid to' and does not carry the significance of a 'gift'. The other entries in the day book on the same date are of the same tenor of which Ibrahim Sahib debited his capital account with Rs. 1,00,000 in favour of his two grand daughters Mamuda Bi and Fathma Bi, Rs. 80,000 in favour of his daughter Jaitun Bi, altogether amounting to Rs. 2,80,000, leaving Rs. 5,000 standing in his own name. Then in the same book he credits these sums to the different persons against whose names the debit entries are made. Separate ledgers were opened in the names of Khaja Bi and Sabjan in which Rs. 1,00,000 was entered to their joint credit under the same date and a one-anna receipt stamp was affixed thereto. The same process was gone through with respect to the daughter and the granddaughters. Then, it appears there have been subsequently adjustments of accounts in the partnership books in the lifetime of Chailabhai Ibrahim Sahib on at least three occasions. The first was on 12th April 1903, in which accounts from 13th April 1901 to 12th April 1903 were adjusted---Exhibits K-1 to K-3. It states that Rs. 5,711 and odd stood to the credit of Chailabhai Ibrahim Sahib himself in respect of the capital. He is credited with the profits due to him as principal and as a working partner. Then an account of the other partner Azimuddin Sahib's share is stated; and of Khaja Bi and Sabjan, of Mamuda Bi and Fatma Bi, his granddaughters, and of Jaitun Bi, his daughter. After deducting the drawings, speaking in round figures, Rs. 24,000 is entered in the name of Ibrahim Sahib, Rs. 66,000 in the name of Azimuddin Sahib, Rs. 1,04,000 in the joint names of Khaja Bi and Sabjan, Rs. 1,03,000 in the names of Mamuda Bi and Fathma Bi and Rs. 82,000 in the name of Jaitun Bi.

5. The next adjustment was on the 25th August 1904. Exhibit K-4. Rs. 30,000 was entered to the credit of Ibrahim Sahib, Rs. 71,000 to the credit of Azimuddin Sahib, Rs. 1,07,000 to the credit of Khaja Bi and Sabjan Sahib, Rs. 1,06,000 to the credit of Mamuda Brand Fathma Bi, Rs. 85,000 to the credit of Jaitun Bi. The third and last adjustment was on the 12th April 1906-Exhibit-K-2-on which date, the total to the credit of Khaja Bi and Sabjan is given as Rs. 1,15,000 and to that of Jaitun Bi Rs. 1,01,000 and to the credit of Mamuda Bi and Fathma Bi Rs. 1,14,000. The next entry which is of importance is of 13th February 1909. It is to this effect: 'Credited to Vaniambadi Station account through Ejaman Avergal, (that means Chailabhai Ibrahim Sahib the principal partner) Rs. 90,000' and debited to Khaja Bi and Sabjan Sahib what was 'given' (meaning 'paid') through Ejaman C. Ibrahim Sahib, Rs. 1,23,500.' The Rs. 90,000, which is credited to Vaniambadi Station account, is made up of four items of Rs. 40,000, Rs. 18,000, Rs. 12,000 and Rs. 20,000 each entered under dates 25th April 1908 to 28th July 1908 as 'debited,' paid, when Ejaman Ibrahim Sahib went to the village.

6. The case of the appellant Sabjan is that on the 12th August 1901 Ibrahim Sahib made a gift of Rs. 1,00,000 to himself and Khaja Bi jointly and he was then entitled to a moiety of it and his learned Counsel Mr. Nugent Grant argued that though on the 13th February 1909, Ibrahim Sahib attempted to revoke the gift in his client's favour by making the entries which have been last referred to, the revocation was of no effect in law as the gift had been completed in 1901. The case of Khaja Bi the widow of Ibrahim Sahib is that what happened on 12th August 1901 was, not that her husband made a gift of Rs. 1,00,000 to herself and Sabjan jointly, but that he earmarked this amount to be given to her solely afterwards with profits that might accrue thereon, and as she herself intended ultimately to; give the money to Sabjan the amount was entered in the joint names of herself and Sabjan. She says that as a matter of fact, the gift to her was between 25th April 1908 and 13th February 1909. She was given Rs. 90,000 between the first mentioned date and 30th July 1908 and on the 13th February 1909 she was given Rs. 33,500 more; That amounted altogether to Rs. 1,23,500 and that, she says, is the meaning of the entry 'debited to Khaja Bi and Sabjan what was given through Ejaman Ibrahim Sahib, Rs. 1,23,500.'

7. The case of Sabjan rests entirely upon the entries in the books of account of Chailabhai Ibrahim Sahib. The oral evidence, such as it is, as to what happened on the 12th August 1901 is extremely vague and is not of any use by itself. The learned Judge was unable to place any reliance upon it as showing that Ibrahim Sahib intended to, and did as a matter of fact, give Rs. 1,00,000 to his wife and Sabjan. I am not prepared in appeal to take a different view. What is a matter of considerable significance is that if the entries of the 12th August 1901 were intended as evidence of gifts actually made on that date to Sabjan and to Ibrahim Sahib's daughter and grand-daughters amounting to Rs. 2,80,000, there should be no evidence forthcoming as to the guardians of the minor donees being informed of the gifts or the grown-up donees accepting the gifts. Nor indeed is there any satisfactory evidence as to any declaration made by C. Ibrahim Sahib of his intention in making the entries or in fact of any conversation that took place at the time. It might indeed be well expected that if Ibrahim Sahib wanted to dispose of such large sums of money by way of gift in proesenti, he should have executed some formal instrument. In the absence of any reliable evidence as to what took place at the time, we are left to conjecture what the intentions of the deceased were in making the entries. Although Ibrahim Sahib lived for more then 8 years afterwards, it is not proved that during all this time he did anything more than make a few more entries in his own account books similar to those of 12th August 1901.

8. It is argued on behalf of Sabjan that as a matter of fact Ibrahim treated the monies entered in the names of Sabjan and Khaja Bi as theirs. In support of this, he relies on entries showing that the profits of the business were credited in their names and that certain sums were drawn from these accounts from time to time. As regards the crediting of the profits, that does not carry the case any further than that the entries relating to the capital account of Ibrahim Shaib once transferred in the names of the several claimants were followed right through.

9. As for the drawings, they were all of comparatively small amounts and except as to an item of Rs. 57, which may be taken to have been drawn by Sabjan, the drawings were by Ibrahim himself, although it may be that the amounts entered as drawn in the several accounts were spent by him for the benefit of the person in whose names the accounts stood. They were mostly for the purpose of making Jewels and, considering the wealth of Ibrahim Sahib, the fact that he made a present of jewels worth Rs. 750 on one occasion to his wife, on another occasion of jewels of the value of Rs. 1,500 to his two grand-daughters and on a third occasion drew Rs. 1,500 for making jewels for his daughter, does not necessarily indicate that the presents were not made from his own funds, but from funds belonging to, them. As for the Rs. 57 drawn by Sabjan, it is probable, as suggested by the learned Trial Judge, that he drew it himself during the absence of Ibrahim Sahib. In any case, considering that Sabjan was brought up by Ibrahim and was taking part in the business, the fact that he drew Rs. 57 in his own name and that it was entered in his ledger is of very little significance. On the other hand, we find generally that the expense incurred on behalf of, and payments made to, Sabjan down to Ibrahim's death are entered to the debit of Ibrahim's own account.

10. It is perfectly dear from the evidence that whatever might have been the motive or intention of Ibrahim in entering his capital account in the names of the several claimants leaving a small balance of Rs. 5,000 standing in his own name, he retained entire dominion and control over the whole of this capital of Rs. 2,85,000. He continued it in the business. He debited or credited these accounts with various sums from time to time as drawings of profits at his will and pleasure and according to no discoverable system. None of the claimants, on the other hand, ever professed to exercise any sort of right or control over the amount standing in his or her name. The evidence compels a strong conviction in one's mind that during the 9 years that these entries stood in their names they never thought that they had any right to any portion of these monies. It is argued that the arrangement was that these amounts, although given to the various persons claiming them, were to remain in the business, the profit accruing thereon being credited in the proportions agreed upon. But with whom was this agreement? So far as the minors are concerned, it does not even appear that their legal guardians were informed of what happened and certainly there is no suggestion that they were parties to any such arrangement. Nor is there any reliable evidence that there was in fact such an arrangement between Ibrahim Sahib and the adult claimants, that is, his wife and his daughter. In fact, Khaja Bi's case is that there was no gift in 1901 and the daughter Jaitun Bi does not seem to have asserted any claim at all. Sabjan at the time was of the age of discretion according to Muhammadan Law and might be presumed to understand the nature of the gift in his favour. From the evidence it appears that he was not at all taken into confidence nor was he told that he had been given Rs. 50,000. It is possible that he might have seen these entries, and Mr. Grant, I think, is right in saying that the entries were never sought to be kept secret. They could hardly be kept secret as the partners and the clerks writing the books had access to them. Sabjan attained majority sometime in 1904 or 1905. He was admitted as a partner in 1904. If such a large amount stood in his name, it is unaccountable upon the theory of a completed gift that he should not have attempted to draw upon it at all. This is all the more unaccountable in view of the fact that he was married in 1905 and latterly was not getting on quite satisfactorily with Khaja Bi and Ibrahim Sahib. It cannot be said that the monies that stood in the name of Sabjan were not drawn at all. But the drawings were all with a solitary exception, made by Ibrahim Sahib himself. These facts inevitably lead to the conclusion arrived at by Mr. Justice Wallis, as he then was, that Sabjan was never allowed, any control or dominion over the monies represented by the entries in the joint names of himself and Khaja Bi. His case really cannot be distinguished upon the evidence from the case of the grand-daughters and the daughter. It is extremely, likely that although the father of the granddaughters, the daughter and her husband and the father of Sabjan were not informed of the entries that had been made in the names of these persons, they came to know of them subsequently. There is, however, no evidence whatever to suggest any consciousness on their part that gifts of such large, sums of money had been made to persons in which they were so intimately interested.

11. If they were aware of any such gifts; the probabilities are that they would have made demands for the monies or clear and positive evidence would have been forthcoming to show that an arrangement had been arrived at between them and Ibrahim Sahib to the effect that he was to keep the monies in his business. Sabjan attained majority sometime in 1904 or 1905 and he was taken as a partner in 1904. There was no reason then why Sabjan should not have been told definitely that the money that was entered in his name belonged to him, even supposing that the fact that Ibrahim stood in loco parentis towards him might account for the absence of interference on the part of Sabjan's father during his minority. If we could find on the evidence that as a matter of fact there was a completed gift in favour of Sabjan and C. Ibrahim Sahib agreed to hold the money on his behalf as: his de facto guardian, then, the gift might perhaps be in substantial compliance with the requirements of Muhammadan Law without an actual or formats transfer of possession to Sabjan's father, who had practically abandoned guardianship in favour of Ibrahim Sahib; But it is not necessary to express any opinion on this, question as in fact there was no intention to make a gift. Farther, there may be force in the argument of the learned Advocate-General that no such presumption as is sought to be raised in favour of Sabjan Sahib can arise under the Muhammadan Law at least-in a case where one of the joint donees is a major capable, of receiving possession of the thing given.

12. The result of the evidence is that in making the entries in question, Ibrahim, Sahib did not mean to make, gifts of the various sums out and out. He did not want it to be so understood and never thought of parting with the control and possession of the funds. If he had made a gift of Rs. 2,80,000 in 1901, he would have placed himself entirely at the mercy of the father of Sabjan who was no relation, of his, of the father of his and daughters and the husband of his daughter. They would have been in a position to withdraw the money from his business and so far as the guardians of the minors were concerned they would have been under a legal obligation to do so. That would have meant the winding up of the firm which he certainly did not contemplate. It is impossible, therefore, to believe that in 1901 he intended making gifts in praesenti of the whole of the assets in the business which practically represented his entire possessions.

13. It is not the necessary or ordinary effect of a credit entry in favour of a person that the sum so entered is thereby transferred to him: all that it implies is that he is entitled to the amount from the person in whose account the entry occurs. How the former became so entitled has to be proved aliunde: the ordinary presumption is that such an amount had been paid in by the person to whom it is credited.

14. It has also been contended by Mr. Grant that we should hold that C. Ibrahim Sahib held one half of the amount entered in the joint names of his client Sabjan Sahib and Khaja Bi as trustee for him. There is however, no evidence from which any declaration of trust can be clearly implied, The case cited to us as Sir Jamsetji Jijibhai v. Sona Bai 2 B. H.C.R. 133 has no bearing. There the money, which partly consisted of wages already earned by an employee of the firm of Sir Jamsetji Jiji Bhai together with certain accounts added to it by way of bounty, was allowed by the consent of the employee to remain as an investment in the firm and it was held that the circumstances of the case afforded evidence that the money was held in trust by Sir Jamsetji for the benefit of his employee. No portion of the money standing in the names of Sabjan and Khaja Bi could be said to belong to Sabjan Sahib unless there was a gift of it by C. Ibrahim Sahib, and I have found there was no such gift. There is no evidence that there was any express declaration of trust by Ibrahim Sahrib in favour of Sabjan nor is there any thing from which any intention on his part to create a trust can be implied. As laid down by Sir Charles Sargent in Ashabai v. Haji Tyeb Haji Rahimtullah 9 B.D 115.:

In order that the owner of a fund may constitute himself a trustee, he must either expressly declare himself a trustee, or must use language which, taken in connection with his acts, shows a clear intention on his part to divest himself of all beneficial interest in it, and to exercise dominion and control over it exclusively in the character of a trustee.

15. It was also argued on behalf of Sabjan Sahib that the entries in question signed as they were by C. Ibrahim Sahib amount to an instrument of transfer within the meaning of Section 130 of the Transfer of Property Act. But if there was no intention on the part of Ibrahim Sahib to give at all, the question whether the entries and the accounts can be treated as an instrument of transfer does not arise. Nor is it necessary to express my opinion as to whether a transfer of a part of a debt is valid in law.

16. The question what led Ibrahim Sahib to make these entries is more difficult to answer. The motive could not have been to save his property from creditors, for he had none and his business was so prosperous that in ordinary course he would not anticipate misfortunes. He was, however, advanced in age as people reckon in this country. Plague had broken out in Vaniambadi and it is possible that he, contemplated dividing his fortunes among his wife, daughter and grand-daughters and the boy Sabjan whom he was bringing up as a son rather than they should descend to his brother's children to any large extent. Whether he intended to carry out the idea when death approached nearer can only be a matter for surmise. The entries which he made in his own books are, in my opinion, nothing more than mere notes or memoranda of the amounts which he intended to give at some future time to these persons.

* * * *

17. The appeal is allowed. The costs of all parties in all the appeals to come out of the estate of Ibrahim Sahib to which the appeal relates.

Seshagiri Aiyar, J.

18. These appeals relate to the estate of one Chailabhai Ibrahim Sahib. He carried on business in hides, tanning them in Madras and exporting them to Europe. His first partner was Azimuddin Sahib; after settlement of accounts with him, he took one Aziz as his partner. Ibrahim Sahib died on the 26th February 1909. He left no sons; his widow, his brother's song, a daughter and two grand-daughters by a pre-deceased daughter survived him. The relationship of most of the parties to the various suits is set out in the pedigree printed at page 20 of the pleadings paper in Original Side Appeal No. 58 of 1915. To this genealogical tree may be added the name of Sabjan Sahib, the wife's sister's son of Ibrahim Sahib.

19. On the 12th August 1901, the deceased Ibrahim Sahib made certain entries in the day book of his firm which were subsequently transferred to separate ledgers in the account books. The litigation is largely, due to the entries then made by Ibrahim Sahib and the questions we have to decide relate to the meaning to be attached to them and to the legal effect to be given to them.

20. Before dealing with the separate appeals, I may mention in their order the suits which were instituted on the Original Side of this Court from which these appeals have been preferred.

21. Civil Suit No. 324 of 1909 was instituted by Sabjan Sahib, the wife's sister's son of Ibrahim, for a dissolution of partnership on the ground that during the lifetime of Ibrahim he became a partner in the firm, that on the death of Ibrahim the partnership became dissolved and that he was entitled to have an account of the assets and liabilities of the partnership taken. In this suit, the learrted Chief Justice (Mr. Justice, as he then was) held that Sabjan was a partner in the firm and that he was entitled to have an account taken. In dealing with the accounts, the learned Judge came to the conclusion that the entry in favour of Sabjan conjointly with Khaja Bi, the wife of Ibrahim, was only a paper entry and did not amount to a transfer of any share in the capital of Ibrahim. Against the preliminary decree declaring that Sabjan was a partner, an appeal was preferred to this Court in 1912, and the preliminary decree was confirmed with slight modifications. Sabjan Sahib has preferred an appeal, i.e., Appeal No. 54 of 1914 against the final decree disallowing a half share in the sum of Rs. 1,00,000 entered in the joint names of Sabjan and Khaja Bi in 1901.

22. Civil Suit No. 153 of 1910 was brought by the two granddaughters of Ibrahim claiming Rs. 1,00,000 on the ground that an entry was made in the account books of the firm crediting them with that amount. This suit was dismissed by the learned Judge for the reasons in the final judgment in Civil Suit No. 324 of 1909. The grand-daughters have preferred no appeals.

23. Civil Suit No. 56 of 1912 was brought by Sabjan Sahib for his half share in the Rs. 1,00,000 already referred to. That suit was also dismissed for the reasons given in Civil Suit No. 324 of 1909 No separate appeal has been preferred against the decree as Sabjan has preferred an appeal in the partnership suit which, if successful, would cover his claim in this suit.

24. Appeal No. 87 of 1914 relates to a sum of Rs. 14,000 which was allowed in favour of Sabjan Sahib in the partnership suit. This sum represents expenses incurred for the marriage of Sabjan, in regard to which the learned Judge held that the deceased Ibrahim defrayed the whole of the expenses for the marriage and that Sabjan ought not to be debited with that amount. In this appeal, objection is taken to this conclusion.

25. Appeals Nos. 106 and 107 of 1914 arise out of certain interlocutory orders passed in the course of the suits and it is not now necessary to deal with them separately.

26. Civil Suit No. 125 of 1914 was brought by the brother's sons of Ibrahim Sahib for a partition of the property of the deceased. In that suit, Mr. Justice Kumara swami Sastri, relying mainly upon the conclusions come to by Mr. Justice Wallis in Civil Suit No. 324 of 1909, held that, the gift set up by Khaja Bi of Rs. 1,23,000 was not made out. Appeal No. 58 of 1915 is by Khaja Bi against-this decree of the learned Judge.

27. These are all the appeals that we have to deal with. Now I will take up Appeal No. 54 of 1914.

28. The main question relates to the meaning to be attached to the entry in Exhibits J and J1, made on the 12th August 1901 by Ibrahim. There are two points to be considered in connection with this question. The first point is, what was the intention of Ibrahim in making the entry and the second is whether the language employed by him effectuates that intention. I feel very little hesitation in holding that Ibrahim did intend to benefit the persons in whose favour be made the entries, at sometime or other. This seems to have been the opinion of Mr. Justice Wallis. There is evidence that at this time there was plague in Vaniambadi; and it is not unlikely that Ibrahim thought that he should make some distribution of his property in favour of those to whom he was attached. At the same time I have no doubt that it was not his intention to part with the possession of the sums entered in favour of these persons. The business was a flourishing one at that time, and everything depended upon the capital employed in the business. It is in evidence that at about this time a settlement between the partners was arrived at, and that the share of Ibrahim was ascertained to be worth Rs. 2,85,000. The entries dispose of Rs. 2,80,000 out of the Rs. 2,85,000 in favour of his relations. It is not suggested that he wanted to withdraw from the business at this time. On the other hand, there is every indication to show that he wanted to continue and did continue the business for a long time after. My opinion, therefore, is, that, although he in tended to benefit the persons in whose favour he made the entry at sometime or other, it was not his intention to give the property on the date of the entry.

29. The language of the entry also makes it fairly clear that his object was not to part with possession of the funds. At the beginning of the argument a suggestion was made that by the use of the word, 'tharum' the deceased intended to make a gift of the property at some future time. Ordinarily, the 'tharum' denotes something to be done in the future. But there are entries in the same page as that in which Exhibit J-1 appears, where the word 'tharum' is employed to denote what has been actually done. In this position, we thought it right to examine Mr. P. Ramachandra Rao, a gentleman who held the position of Chief Interpretor on the Original Side of this Court for over thirty years and whose experience of the language employed by the merchants of this description is unrivalled. He said that the word 'tharum' was employed by the merchants in the North Arcot District to denote what bad been already done and did not indicate an action to be taken in future. He trans, lated the word 'tharum' as 'paid'. In answer to a further question he stated distinctly that the word 'tharum' did not connote gift. In my opinion, the translation given by the Court translator is fairly accurate and the entry may be translated as follows: 'Debited to the account of Vaniambadi Ejaman Chailabhai Ibrahim Sahib what was paid to my wife Khaja Bivi and Sabjan....' There are similar entries in favour of the grand-daughters to the extent of Rs. 1,00,000 and in favour of a daughter for Rs. 80,000. Does this mean that money was actually paid to the persons in whose favour the entries were made? It is not the case of any one that any money was actually available for payment to the parties. All that was said was that the monies were retained by Ibrahim in the business itself, and that from the date of the entries, Ibrahim became accountable either as trustee or in some other capacity for all the monies which he had made over by those entries in favour of the various relations.

30. Upon this view of the facts, it is not necessary to discuss the questions of law which have been argued in this case. However, as the matter may not stop here and as it is possible that a different construction may be placed upon the entry, I wish to say a few words on the questions of law raised in this case. Under the Muhammadan Law Ibrahim was not the guardian of Sabjan. It is in evidence, and it was hardly disputed, before us, that at this time, i.e., in the year 1901, Ibrahim was very much attached to Sabjan who was his wife's sister's son. He himself had no son and seems to have taken a great fancy to the young boy. It may be said that he was standing in loca parentis to the boy. If that description of the stranger is correct in the case of a boy who has his parents, then according to the view held in Madras, it is not necessary that actual possession should be given to the donee. The possession retained by the donor who is in loco, parentis to the donee, would be sufficient. That was the view taken by Mr. Justice Abdur Rahim in Fakir Nynar Muhamed v. Kardasawmi Kulathu Vandan (3) 14 Ind. Cas. 993. and by Mr. Justice Tyabji in Alamanayakunigari Nabi Sab v., Murukuti Pupiak. 29 Ind. Cas. 439., Hedayya, Volume III, page 297, is apparently the origin of this principle. It is true that in the Digest of Muhammadan Law Bailie at page 539 seems to suggest that the theory of loco parentis could only apply to persons who have no parents. He does not refer specifically to Hedayya but he seems to have had that authority in mind in making this statement. I do not see why the position of a boy who has his parents but towards whom a certain person is in loco parentis should be different from the ease of an orphan. I agree with the conclusion of Abdur Rahim and Tyabji, JJ., and hold that the fact that actual possession did not pass at the time of the gift, if there was a gift, would not detract from the gift. In the present case, there are some serious objections to accepting this position. The gift was not made to a minor alone but to a minor and to an adult person. No authority has been cited to show that where a joint gift is made to a minor and an adult the donor in loco parentis can accept the gift so far as the minor's share of the property is concerned. One would have thought that the person to accept would be the adult donee for herself and on behalf of the minor donee. It is not suggested in this case that the adult donee accepted even for herself. That is another indication to show that the entry was not intended to be given effect to as a gift. It may be, as suggested by Mr. Grant, that the word 'benami' applied by the learned Judge is not quite apt. I have no doubt that what the learned Judge meant to say was that it was a nominal transaction not intended to be carried into effect at once and not that it was benami for somebody else.

31. On the question as to whether the entry cannot be treated as a declaration of trust, it is well settled that if a gift is imperfect, Courts should not spell out a trust in respect of such a transaction. Mr. Grant strongly relied upon the decision in Sir Jamsetji Jijibhai v. Sonabai 2 B. H.C.R. 133. That was a case where a certain sum of money was due to the donee as salary and a separate account was opened in the name of the salaried servant for that amount. Large additions were made to that account which were no doubt voluntary donations. But where once a man's admitted claim is added to by including in it either sums, the implication is clear that the other sums partook of the character of the original account Moreover the language employed on that entry is different from what we have in the present case. As regards the decision in Taro Bebee v. Ghasiram, 3 C. L. R. 247, I do not think that any general principle was laid down in that case. There was a registered deed and one of the learned Judges at page 230 says that where there is a registered deed slight evidence of possession would be enough; and he construed certain acts coupled with the entries as furnishing the evidence as to possession. On the other hand, one observation of Mr. Justice Beaman in Ganpatrao v. Vamanrao 10 Bom. L. R. 210 seems very pertinent and I am prepared to accept it. It is that Courts should not make a trust out of a mere book entry. I think something better than a mere book entry is necessary before we can declare that a trust has been created. The case in Ashabai v. Haji Tyeb Haji Rahimtulla 9 B. SD 115. is practically on all fours with the present one, and there the learned Judge declined to spell out a trust under similar circumstances. In this view I do not think it necessary to discuss the question argued by the learned Advocate General that as the entry, if any, related to a chose in action, the Court should not recognise it as valid because the assignment was not of the entire chose in action but only of a part of it. English Judges have differed as to whether the assignment of a part of a chose in action can be given effect to; the learned Judge, who heard the case, was inclined to think that in this country a part assignment would be valid having regard to the absence of a provision similar to what is contained in Section 25 of the Judicature Act. The language of the Judicature Act is 'an absolute assignment of a chose in action' and so on. In Section 130 of the Transfer of Property Act the word 'absolute' is left out. It may be that this was a deliberate departure from the rule of English Law which had given rise to conflicting decisions.

32. As I have held on the facts that no gift or trust has been made out and as I have also held that in law the entry does not amount to a gift or trust, the learned Judge was right in disallowing the plaintiff's claim in respect of it. The appeal fails and must be dismissed. I agree with the order as to costs made by my learned brother.

33. Under the Muhammadan Law this lady Should be entitled to only an eighth share in the property. From the very beginning her husband had been anxious to give her a larger share in the property than she would get under the Muhammadan Law. They had been married at the time of the death of Ibrahim for nearly forty years. They had lived on very affectionate terms. At her instance she had made her sister's son a partner in the business. It seems to me that under these circumstances when Ibrahim was really getting unwell he would undoubtedly think of leaving a larger share to his wife than she would get in a partition under the Muhammadan Law. There is the further fact that although in 1907, he entered in the names of these parties sums amounting to Rs. 2,80,000 in February 1909, he closed up only one ledger, thereby clearly indicating that he carried out his original intention only with reference to this transaction. Again Ibrahim died in 1909, still the suit claiming the money for Khaja Bi was not made for five years after. The parties had at various times referred to the money being in her possession. To my mind the delay is suggestive of the knowledge that the deceased had made a gift bf the amounts to the appellant. Even supposing that when Ibrahim took the monies in June and July 1903 he entrusted them to Khaja Bi only for safe custody, I am of opinion that when he got Rs. 33,500 on the 13th February 1909 and went to Vaniambadi with that sum, seeing that at this time he was unwell, he made a gift of the whole of the Rs. 1,23,500 in favour of his wife as he then, apprehended death. I am, therefore, constrained to differ from the learned Judge who heard the case and to hold that this sum of Rs. 1,23,500 belongs to Khaja Bi and is not part of the estate of Ibrahim, which is liable to be partitioned. I would allow the appeal and direct that the costs of all parties do come out of the estate.

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