Rampini, Acting, C.J, and Sharfuddin, JJ.
1. This is an appeal from a decision of Mr. Campbell, the Divisional Judge of Raipore dated the 22nd August 1905, affirming a decision of Mr. Raghu Nath Das, the District Judge of Sambalpore, dated the 2nd December 1904.
2. A preliminary objection has been urged to the hearing of this appeal on the ground (i) that the appeal, if any, lies to the Judicial Commissioner of the Central Provinces and (ii) that no second appeal lies in the case under the provisions of Section 15, Act II of 1904 (The Central Provinces Courts Act, 1904).
3. The district of Sambalpore was part of the Central Provinces until the 16th October 1905. It was then added by Proclamation of the Governor-General to the Province of Bengal, and by Act VII of 1905 which came into force on the 16th October 1905, it is provided in Schedule D, Part II, that in construing enactments in force in the district of Sambalpore, the words 'Judicial Commissioner' of the Central Provinces shall be construed as if meaning 'the High Court of Judicature in Bengal.' Hence, it would seem that, if an appeal lay from the decision of the Divisional Judge of Raipur to the Judicial Commissioner of the Central Provinces, it should after the 16th October 1905 be preferred to this Court.
4. The question then arises 'did any appeal lie from the decision of the Divisional Judge to the Judicial Commissioner of the Central Provinces?' The Act in force, when this appeal was preferred was Act II of 1904. It was repealed no doubt by Act IV of 1906, but this latter Act did not become operative till the 1st January 1907. The appeal to this Court was preferred on the 21st December 1905. Hence, the provisions of Act II of 1904 and of the Code of Civil Procedure would seem to govern the Case. Now, it would appear that, though under the provisions of Act II of 1904 no second appeal expressly lies from the decision of the Divisional Judge to the Judicial Commissioner, yet such an appeal lies under the provisions of Section 584 of the Code of Civil Procedure. This section enacts that 'unless when otherwise provided by this Code or any other law, from all decrees passed in appeal by any Court subordinate to a High Court, an appeal shall lie to the High Court' on the grounds specified in the section' Now it would seem that under Clause 24, Section 3 of the General Clauses Act (X of 1897), which reproduces the definition of High Court given by Section 2(11) of the General Clauses Act of 1868, the Court of the Judicial Commissioner comes within the expression 'High Court' in Section 534, Civil Procedure Code. So that, as the Court of a Divisional Judge was subordinate to the Court of the Judical Commissioner, and since the passing of Act VII of 1905 it is subordinate to this Court, both before and since the passing of Act VII of 1905, second appeals must lie from the decisions of the Divisional Judge, formerly to the Judicial Commissioner and now to this Court. We are fortified in this conclusion by reference to the Nagpur Law. Reports, in which we find numerous reports of cases in which second appeals from the decisions of the Divisional Judge were heard and decided by the Judicial Commissioner of the Central Provinces. We therefore overrule the preliminary objection and proceed to consider the appeal on its merits.
5. The facts of the case are that the plaintiffs are reversionary heirs to the estate of one Hari Suar deceased--which estate is now in the possession of the defendant No. 1, Musummat Bhowani, to whom it came from Musummat Marhi, widow of Hari Suar. On the 14th June 1902, the defendant No. 1 executed a registered deed of gift of the property of Hari Suar in favour of her daughter, Musummat Jahnavi. The suit is brought by the plaintiffs to obtain a declaration that this deed of gift is void as againt them as reversioners. The Court below has dismissed the suit on the ground that the deed of gift, being unaccompanied by delivery of possession is invalid, and can do the plaintiffs no harm.
6. The plaintiffs appeal and rely on Section 123 of the Transfer of Property Act, according to which, it is contended the deed of gift being registered is valid whether accompanied by possession or not This contention would appear to be correct, and this has also been laid down as the law in Dharmodas Das v. Nistarini Dasi (1887) I.L.R. 14 Calc. 446, Bai Rambai v. Bai Mani (1898) I.L.R. 23 Bom. 234, and Phul Chand v. Ldkkhu (1908) I.L.R. 25 All. 858.
7. The respondent's pleader, however, argues (i) that the law as interpreted in the Central Provinces is that, notwithstanding the terms of Section 123 of the Transfer of Property Act, a deed of gift is invalid unless accompanied by possession and that possession of the property affected by the deed of gift in question was not delivered to the donee, (ii) that the gift was never accepted by Jahnavi, and (iii) that the deed was practically cancelled by the subsequent sale of the village of Topapara. But the law cannot be altered by an erroneous interpretation put upon it by the Courts of the Central Provinces. Possession of the property may not have been given (though there is a recital in the deed that it has), the gift may not have been accepted by Jahnavi (though there is no finding to this effect), and the village of Topapara may have been sold (though the gift was not expressly cancelled), but notwithstanding all this, the execution of the deed of gift would seem to be injurious to the rights of the reversionary and gives them a cause of action and a right to have the deed declared null and void as against them, The execution of the deed raises a cloud upon their reversionary rights, which under Section 39 of the Specific Relief Act is enough to justify their bringing this suit. In fact, the tenacity with which the respondents have resisted the suit and the persistency with which they have maintained that the deed is invalid, but that the plaintiffs have no right to sue to set it aside, are sufficient to show that the plaintiffs have very reasonable grounds for apprehending that it is intended at some future time to use the deed to their injury.
8. For these reasons, we consider the plaintiffs have a good cause of action and a right to the relief sought for.
9. We accordingly decree this appeal with all costs.