Tottenham and Ameer Ali, JJ.
1. The plaintiff in these suits sued to recover possession of certain properties on the ground that they were covered by a deed of gift executed in her favour many years ago by her brother, one Pran Krishna.
2. Both the Courts below have dismissed the suits on the ground that the deed of gift propounded by the plaintiff was not operative in law.
3. The deed in question bears date the 26th Aghran 1284. It is a registered document, and purports to cover, so far as can be gathered, all the properties belonging to Pran Krishna. Four years later, namely, some time in 1288, Pran Krishna sold a portion of the same property, for a consideration of Rs. 160, to the defendants in one suit, and shortly afterwards another portion, for a consideration of Rs. 290, to the defendants in the other suit; and he appears to have died six years after the execution of the deeds of sale. The present suit was brought, as appears from the judgment of the appellate Court, five years after Pran Krishna's death.
4. The defendants contended that though the deed of gift may have been executed by Pran Krishna in his life-time, the plaintiff never obtained possession of these properties, and that, therefore, the gift was invalid, and that they themselves were put in possession by the vendor, and have been ever since in possession of the properties purchased by them. Baboo Karuna Sindhu Mukerji, who appeared for the appellant in this Court, contended that the fact of the deed of gift being registered was sufficient to convey the property to the plaintiff, no possession being required under the Hindu law to perfect the gift. He further contended that, as a matter of fact, possession had been delivered, and that the lower Courts were wrong in holding otherwise. And thirdly, he urged that the plaintiff was in possession of the title-deeds of the properties, and the Courts were wrong in not admitting them in evidence.
5. It must be observed in the first place that the deed of gift was executed long before the Transfer of Property Act came into force, and it is conceded that, whatever alterations may have been made in the provisions of the Hindu law by Section 1291 of the Transfer of Property Act, they do not affect any right taken under the present deed of gift. We have therefore to consider whether the view propounded by the pleader for the appellant is well founded viz., whether when once a deed has been registered no possession is necessary to perfect the gift.
6. Mr. Mayne in his work gives a general epitome of the prevailing law on the subject, and his conclusion may be summarised thus: that though there is no specific direction in the Hindu Law as to delivery of possession, the general course of decisions has been that some sort of possession is necessary, and there is no doubt that in a number of cases [see Dagai Dabee v. Mothuranath Chattopadhya I.L.R. 9 Cal. 854, Harjivan Anandram v. Naran Haribhai 4 Bom. H.C. 31, Kishto Soondery Debea v. Kishtomotee Marsh. 367] that view has been adopted. The case of Dharmodas Das v. Nistarini Dasi I.L.R. 14 Cal. 446, which was referred to in argument, explains in a somewhat different way the rule of Hindu law. In that case Mr. Justice Mitter says: '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 the law has been abrogated by Section 123* of the Transfer of Property Act.'
7. The cases of Kalidas Mullick v. Kanhaya Lal Pundit I.L.R. 11 Cal. 121, Mahomed Muse v. Jijibhai Bhagwan I.L.R. 9 Bom. 524, and Mohe-shur Buksh Singh v. Gunoon Kunwar 6 W.R. 245, which were cited, have little bearing on the present question.
8. But accepting the view enunciated by Mitter, J., it seems to us that in the present case the Courts below have found as a fact that the plaintiff never had possession during Pran Krishna's life-time, nor did she ever make any objection to the defendants taking possession of the property sold to them. There is no indication that she ever accepted the gift; and the facts detailed in the Munsif's judgment would lead to the conclusion that the plaintiff had no connection with any portion of the property at any time after the execution of the deeds.
9. It is urged that the delivery of the title-deeds is some evidence of delivery of possession. The plaintiff is the mother of the next heirs of Pran Krishna. Upon his death such documents as were in his possession would naturally come into their hands. Apparently, with the exception of one of the documents, none of them relate to any of the properties in suit. The mere fact therefore that she is now in possession of some of the title-deeds relating to the properties covered by the deed of gift would throw no light upon the question of possession, even as explained in the case of Dharmodas Das v. Nistarini Dasi I.L.R. 14 Cal. 446, and both the Courts have negatived, upon the evidence the allegation of possession of any portion of the property forming the subject of the gift. So far, therefore, as the two first grounds taken by the pleader for the appellant are concerned, we must decide upon the facts against the plaintiff.
10. As regards the third ground, we find from the order sheet of the Munsif that the documents were not produced until after the case had concluded and been reserved for judgment. We are therefore of opinion that the original Court was right in refusing to admit them at that stage. It is unnecessary to enter into the ground mentioned by the Lower Appellate Court for refusing to admit those documents.
11. On the whole, we are of opinion that the plaintiff has failed to prove her case, and that the appeals must be dismissed with costs.
1 Saving of donations mortis causa and Muhammadan law.
[Section 129 : Nothing in this chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law, or, save as provided by section one hundred and twenty-three, any rule of Hindu or Buddhist law.]
* Transfer how effected.
[Section 123 : For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.]