William Ayling, J.
1. I have no hesitation in accepting the findings of the learned Judge on the issues referred to him.
2. As regards the house assigned by Exhibit B, No. 107 in Thambu Chetty Street, it is found that at any rate after the date of Exhibit I, possession was held by Chinna-vapu Sahib (the donor) only as the guardian of the donee: and it may be inferred that his possession between the date of gift and that date was in the same capacity. I should, therefore, hold that the gift is valid.
3. The case of the other house, No. 76 in Angappa Naick Street, transferred by Exhibit A is different. The learned Judge finds 'that possession of the subject of the gift was not actually transferred by the donor to the donee and that, after the gift and until the death of the donor, no act of ownership was exercised over the subject of gift either by the donee or by any person on behalf of the donee but that the donor continued to receive rents from the property.'
4. There is in fact nothing apart from the recital in Exhibit A (the deed of gift itself) to indicate or suggest any transfer of possession or change of ownership. To this must be added the fact that the income of the property is by Exhibit A secured to the donor, for his life: and that the donor omitted to take the simple and commonplace step of securing mutation of names in the registers of the Collector's Office or Municipality.
5. I express no opinion as to the question of whether in a case like this a (declaration of gift can itself he sufficient or whether something over and above it must always be required, and I do not understand my learned brother to have intended to decide this point in his judgment delivered at the first hearing of this appeal. But I think the facts in this case justify the inference that the gift of this house was not intended to be effective: and should not be given effect to.
6. It is argued that the two gift-deeds were executed on the same day and are identically worded while the inference from the failure to secure mutation of names is the same in each. But in the one case there is something to rebut this inference: in the other there is not. And the fact that the donor went to the entirely unnecessary trouble and expense of executing and registering separate sale-deeds for the two houses, certainly, suggests a possibility of different intentions regarding them.
7. I would, therefore, hold the gift by Exhibit A to be invalid.
8. I have arrived at the same conclusion. I agree with Kumaraswami Sastri, J.'s appreciation of the evidence and in his findings of fact. The result is that as regards one of the gifts (Exhibit B) we find the father dealing with the property after the declaration of gift on the basis that the son was its owner. This conduct of the father indicating that the son was the owner of the property, strongly supports the conclusion that there was 'on the part of the father...a real and bona fide intention to make a gift,' Ameeroonnissa Khatoon v. Abedoonnisa Khatoon 2 I.A. 87, and that he had completely transferred the ownership of the property to the donee. I come to the conclusion, therefore, that the gift under Exhibit B was valid and complete.
9. With reference to the other gift, Exhibit A, all we have is a bare declaration of gift by the father. In the circumstances of the case (including the fact that the father reserved to his own use the rents and profits of the property during his life-time) no aid can be had from the application of the profits of the gift, though ordinarily, as Sir Barnes Peacock pointed out in the case already cited at page 98, 'the mode in which the father dealt with the profits would be important as regards the bona fides and completeness of the gift as throwing light upon the intention.' There are circumstances on the other hand showing that there was no intention to make a complete transfer by way of gift. These circumstances are, in my opinion, sufficient to turn the scale in a case where the father reserves the rents and profits to his own use and where, therefore, their Application cannot be referred to for discovering where the ownership lies. For there is no mutation of names in the Collector's books or in the Municipal records, no tenants are asked to attorn to the donee, or informed that in future the donee is their landlord nor public acknowledgment of the ownership of the donee. In such a case it would be quite unsafe to hold that there was any intention to transfer the property because a declaration of gift was made and the donor was the father and guardian of the minor donee. For the reasons I have already given, it seems to me that the presumption of law that the gift is completed on the declaration cannot be made the basis for holding that the gift must be necessarily considered in every case to be proved to have been intended to be made and to be completed, when all that is proved is that there was a declaration of gift by the father or grandfather in favour of his minor son or grandson. The surrounding circumstances may show, as they do here, that the alleged gift was not intended to operate as a transfer to the donee.
10. In the result there will be a declaration that the gift under Exhibit A was invalid, but that the gift under Exhibit B was valid and complete, and the properties referred to in Exhibit A formed part of the estate of the deceased Mahomed Ibrahim alias Chinnavapu, but that the properties referred to in Exhibit B, did not so, form part.
11. The suit does not expressly purport to be one for administration and has not been tried as such, but we find ourselves unable to accede to the plaintiff's request to ignore the contentions raised in the written statement of the defendants which are to the effect that the deceased Mahomed Ibrahim died possessed of other properties moveable (and perhaps also immoveable) which ought to be administered. We do not think that in the circumstances of this case we ought to pass a preliminary decree for the partition amongst the heirs of the deceased of the properties referred to in Exhibit A alone without any enquiry of the nature required in an administration suit. For we find that on the pleadings the most proper course would be to proceed on the basis of this suit being for the administration of the estate of the deceased.
12. We remand the suit to the original side, therefore, for trial of the other questions raised on the pleadings. The parties may be required, if necessary, to put in fresh statements so that the issues necessary to be raised and considered in a suit for the administration of the estate of Mahomed Ibrahim may be raised and decided.
13. The costs will be costs in the cause.