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Nistarini Dasi Vs. Dharmodas Das - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal446
AppellantNistarini Dasi
RespondentDharmodas Das
Excerpt:
hindu law - gift--delivery of possession--transfer of property act, section 123--immoveable and moveable property. - .....signed on behalf of the donor and attested by at least two witnesses. for the purposa of making; a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.'3. now in the case of moveable property the hindu law was clear. according to hindu law no gift of moveable property is valid unless the property given away is actually delivered by the donor to the donee section 123 is clear in this respect, that it has done away with the provision of the hindu law requiring delivery of possession as regards moveable property. the second para, of section 123 says that the transfer by gift of moveable property may be effected either by a registered instrument signed by the donor or by delivery. it cannot be reasonably contended that.....
Judgment:

Mitter and Beverley, JJ.

1. Upon this state of things it is contended before us that delivery of possession not having been effected at all, the gift, according to Hindu law, is not valid. The District Judge, who has held that the gift is valid, has relied upon Section 123 of the Transfer of Property Act in support of his conclusion.

2. It is contended before us that Section 123 does not at all abrogate that part of the Hindu law which requires that possession must be delivered in order to complete a gift, and in support of this contention Section 129 of the Transfer of Property Act is referred to. That section says: 'Nothing in this chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Mahomedan law, or, save as provided by Section 123, any rule of Hindu or Buddhist law. 'Now this section no doubt leaves intact the Hindu law except so far as it is touched by the provisions of Section 123 referred to above. We think that the District Judge is right in the construction which he has put upon Section 123 of the Transfer of Property Act. We may, however, state here that it is by no means clear under the Hindu law that, to make a gift of immoveable property valid and complete, delivery of possession is essentially necessary. What is laid down in the Hindu law is this, that to constitute a valid gift there must be acceptance by the donee and one of the modes of acceptance in gifts of immoveable property is delivery of possession on the part of the donor and receipt of possession by the donee Without going into the question of Hindu law, and assuming that law to be in favour of the appellant, viz., that delivery of possession is essential under the Hindu law to complete a gift, we think that that law has been abrogated by Section 123 of the Transfer of Property Act. That section says: 'For the purpose of making a gift of immoveable property the transfer must be effected by a registered instrument signed on behalf of the donor and attested by at least two witnesses. For the purposa of making; a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.'

3. Now in the case of moveable property the Hindu law was clear. According to Hindu law no gift of moveable property is valid unless the property given away is actually delivered by the donor to the donee Section 123 is clear in this respect, that it has done away with the provision of the Hindu law requiring delivery of possession as regards moveable property. The second para, of Section 123 says that the transfer by gift of moveable property may be effected either by a registered instrument signed by the donor or by delivery. It cannot be reasonably contended that this para, of Section 123 still requires delivery of possession, although the gift may have been affected by the execution of a registered instrument. If that were so, the law would stand thus: 'For the purpose of making a gift of moveable property the transfer may be affected, either by a registered document signed by the donor and by delivery of possession, or by delivery of possession.' It would be unreasonable to hold that that is the law as regards moveable property, for, if by delivery of possession alone a gift of moveable property becomes effective, the Legislature would not direct that it becomes effective by delivery of possession and something more. Therefore, as regards moveable property, it is clear that the gift of such property can be effected simply by a registered instrument. That being the meaning of the second para, of Section 123 of the Transfer of Property Act, it seems to us that the word 'must,' in the first para, of the section, mans that the gift of immoveable property can be effected by the execution of a registered instrument only. The word 'must' is used in the first para and the word 'may' in the second para. 'May' is used in the cond para, because there are two effective modes of effecting a gift of moveable property, and in the first para. 'must' is used because there is only one mode of effecting a gift of immoveable property. We, therefore, think that there is an express provision in Section 123 that a gift of immoveable property can be effected by the execution of a registered instrument, and that is the only mode of effecting it.

4. The view taken by the District Judge appears to us therefore to be correct, and this appeal must be dismissed with costs.


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