(1) The appellants in this appeal are the plaintiffs in o. S. No. 1/77 in the court of the district munsif, rajam. The plaintiffs filed the suit for possession of one gold nanu weighing about six tolas and one gold patteda weighing about 3 - 1/2 tolas (hereinafter referred to as the jewellery) which was kept with gara parayya and gara ramulu, defendants 1 and 2 in the suit for safe custody by the late rajapu chinnammi, who, the plaintiffs claimed, gifted the jewellery in their favour. Defendants 3 to 6 impleaded themselves as necessary parties in the suit claiming that they are entitled to the jewellery on the death of the late chinnammi as her heirs and consequently claimed that the plaintiffs are not entitled to the possession of the jewellery.

(2) The question that falls for consideration in this appeal is whether there is a valid gift of the jewellery by chinnammi in favour of the appellants. If it is held that there is a valid gift then the appellants will be entitled to claim possession of the jewellery. It is necessary to set out a few facts for the purpose. It appears chinnammi became a widow when she was very young and lived with the plaintiffs till she died. There is no dispute that he plaintiffs looked after the said chinnammi with all care and affection. This is borne out by the two settlements deeds executed and registered on 23 - 6 - 71 by the said chinnammi in favour of the appellants wherein she referred to the fact that she was looked after by the appellants during her lifetime and, therefore, she was settling her properties on them. It is claimed that the jewellery in question was deposited by the said chinnammi with gara parayya and gara ramulu, defendants 1 and 2 in the suit. Defendants 1 and 2 admitted that the jewellery was deposited with them by chinnammi. They were in custody of the jewellery and they had no interest whatsoever in the je3. The appellants claim that chinnammi had been ill for sometime and decided to gift the jewellery in question in favour of the appellants and, therefore, sent for defendants 1 and 2 for purpose of taking the jewellery from their safe custody and deliver the same to the appellants. At the relevant time, it is claimed, defendants 1 and 2 were away from the village on their business and were not expected to return for quite a few days. It was contended that chinnammi sent for ponnada satyanarayana, bangaru tavudu and rajapu ramanna who were known to her and in their presence made a declaration of the gift of the jewellery in favour of the appellants. At the time when she made the oral declaration of gift of the jewellery the appellants were also present and it is stated that the gift of the jewellery made by chinnammi was accepted by the appellants. It appears chinnammi directed the above mentioned three persons in whose presence the declaration of gift was made to get in touch with defendants 1 and 2 with whom the jewellery was lying for safe custody and ensure that possession of the jewellery is delivered to the appellants. It is said that within 4 to 5 days after making the above declaration of gift chinnammi died. Defendants 1 and 2 admitted that they were in possession of the jewellery in question but they were unable to give delivery of the same to the appellants because the respondents herein have set up a claim that they are the heirs of the late chinnammi and, therefore, they are entitled to the jewellery. In view of the rival claims for the jewellery by the appellants on the one hand and by the respondents on the other defendants 1 and 2 did not think it expedient to deliver the jewellery to the appellants or to the persons whom chinnammi directed to take possession of the jewellery from defendants 1 and 2. Defendants 1 and 2 pleaded that since they have no interest in the jewellery in question they are willing to deliver possession to whomsoever the court ordered. They deposited the jewellery in the court. Thus the question before the trial court resolved itself to this, namely, whether the appellants/plaintiffs are entitled to the possession of the jewellery or the respondents are entitled to the possession of the same. It may also be stated that the appellants have set up an alternative claim before the trial court that they were the nearest heirs to the late chinnammi and, therefore, even in that view they are entitled to the possession of the jewellery. The trial court framed appropriate issues and examined inter alia ponnada satyanarayana and bangaru tavudu, p. Ws. 3 and 4, before whom chinnammi allegedly made the declaration of the gift of the jewellery in favour of the appellants. On a consideration of the evidence the trial court came to the conclusion that the gift of jewellery by the deceased chinnammi in favour of the appellants was established and, therefore, they were entitled to the possession of the jewellery. In the result the trial court decreed the suit filed by the appellants against the respondents herein holding that the appellants were entitled to the jewellery.

(3) In coming to the conclusions that there was a valid gift of the jewellery by chinnammi in favour of the appellants the trial court has taken into consideration the following undisputed facts: - (a) that from very early days the appellants took care of and offered protection to chinnammi until she died very old and this was acknowledged by chinnammi herself in the settlement deeds executed by her settling her immovable properties in favour of the appellants. (b) that there was no evidence whatsoever to show that the respondents had ever looked after the welfare of chinnammi during her lifetime and that their claim to the jewellery is based solely on the near relationship to the deceased chinnammi; (c) that p. Ws. 3 and 4 categorically admitted in their evidence that chinnammi made a declaration of gift of the jewellery in question in their presence in favour of the appellants, when the appellants were also present personally, and directed them to ensure that defendants 1 and 2 delivered the jewellery to the appellants; (d) that at the relevant time when chinnammi wanted to deliver the jewellery to the appellants pursuant to the declaration of gift made by her, defendants 1 and 2 were admittedly out of station on business and did not return until after she died and that there was nothing in evidence to contradict the claim of gift made in favour of the appellants.

(4) Before the trial court respondents/defendants contended that the gift made by chinnammi in favour of the appellants was not valid because the jewellery was admittedly not delivered. To rebut the above plea the appellants seem to have relied on s. 191 of the succession act (hereinafter referred to as the act) , to show that the gift was made by chinnammi a few days before her death and, therefore, it constituted a gift in contemplation of death falling within the terms of s. 191 of the act and was, therefore, valid. Examining it from that point of view that trial court held that in view of the absence from the station at the relevant time of defendants 1 and 2 it must be held that the requirement relating to the delivery in s. 191 of the act was satisfied because there was clinching evidence that chinnammi did in fact make a declaration of gift of the jewellery and directed p. Ws. 3 and 4 and others in whose presence the declaration was made to take delivery from defendants 1 and 2 and hand over the same to the appellants. The trial court held that taking into consideration all the above facts it must be held that there was a valid gift of the jewellery by chinnammi in favour of the appellants and, therefore, decreed the suit in their favour.

(5) The respondents filed an appeal in a. S. No. 214/79 in the court of the district judge, srikakulam, and challenged the correctness of the order of the trial court that the appellants herein are entitled to the possession of the jewellery.

(6) On appeal by the respondents the appellate court reversed the judgment of the trial court and held that the appellants herein are not entitled to claim possession of the jewellery as there was no valid gift of the jewellery by chinnammi in favour of the appellants. In appeal the respondents had taken a short plea that the provisions of s. 191 of the act do not apply to hindus and, therefore, the trial court was in error in accepting the validity of the gift for purpose of s. 191 of the act. On a critical examination of the facts the appellate court agreed with the findings of the trial court. The following are the findings of fact recorded by the appellate court concurring with the findings of the trial court.

" (a) the important fact that has to be considered is as to whether in fact chinnammi made a disposition as contended for the plaintiffs, or not. If p. Ws. 3 and 4 can be treated as reliable witnesses, then it can be stated that chinnammi made the disposition as contended for the plaintiffs. The discrepancies referred to for defendants 3 to 6 are not of such a nature as to doubt the oral disposition made by chinnammi". (vide para no. 11). (b) "when, it can be stated that p. Ws. 3 and 4 have no interest to come and depose on behalf of the plaintiffs falsely, and when they are not inimical to defendants 3 to 6 and when there is no inherent improbability in the version for the plaintiffs it can be stated that chinnammi made the oral disposition as contended for the plaintiffs, and hence i agree with the conclusion of the learned munsif in regard to the same. "

(vide para no. 12)

(7) It would thus appear that on facts the courts below held concurrently that chinnammi made a declaration of gift of the jewellery in question in favour of the appellants in the presence of p. Ws. 3 and 4 among others and that the factum of gift is established. The appellate court then considered the respondents plea that s. 191 of the act does not apply to hindus and consequently the gift was not valid. The appellate court accepted the above contention of the respondents and on that short ground reversed the judgment of the trial court and dismissed the suit filed by the appellants. At the same time the appellate court held that the respondents herein are not entitled to claim possession of the jewellery as they had not filed separate suits and, therefore, the question whether they are under law entitled to claim possession of the jewellery, as the heirs of the late chinnammi, was left open and the jewellery was directed to be kept in the custody of the court till the rightful heirs of chinnammi established claim for the same, failing which the government would be entitled to the same by way of escheat.

(8) Before me the learned counsel for the appellants, sri k. V. Subrahmanya narsu, contended that the trial court as well as the appellate court accepted the factum of gift made by chinnammi in favour of the appellants. Chinnammi was not in a position to deliver the possession of the jewellery as at the relevant time defendants 1 and 2 were away from the station and there was no dispute about this fact. In the presence of respectable outsiders chinnammi made a declaration of gift of the jewellery, the appellants accepted the gift as donees and a direction was made by the donor to ensure the delivery of the jewellery by defendants 1 and 2 pursuant to the declaration made by her in the presence of outsiders. According to the learned counsel chinnammi must be considered to have delivered the jewellery as possible as she could at the relevant time in the peculiar circumstances of the case. Learned counsel, therefore, contended that there was no infirmity in the gift and the appellate court was in error in reversing the judgment of the trial court.

(9) Sri k. Nageswararao, counsel for respondents 1 to 3 contended that the appellate court came to the right conclusion that there was no valid gift in terms of s. 191 of the act and that in any event s. 191 of the act has no application to hindus. Learned counsel supported the order of the appellate court on that ground. Sri s. Venkat reddy learned counsel for respondent no. 4 contended that the claim that the gift made by chinnammi fell within the terms of s. 191 of the act is erroneous because the ingredients of s. 191 of the act are not satisfied. It is pointed out that in order that a gift falls under s. 191 of the act the gift must have been made in contemplation of death and there is nothing in evidence to indicate that chinnammi made the gift in question in contemplation of death. Learned counsel, therefore, contended that s. 191 of the act has no application top the facts of this case. It was further contended by the learned counsel that in order that gift of movable property is valid under s. 123 of the transfer of property act there must be delivery of possession and in the present case there was no such delivery and consequently the gift in favour of the appellants was invalid. It was further pointed out that even for the purpose of s. 191 of the act actual delivery of the subject - matter of gift is an essential requirement just as s. 123 of the t. P. Act provides that in order that a gift of movable property is valid delivery must be made by the donor to the donee.

(10) It appears to me that the appellants were in error in relying upon the provisions of s. 191 of the act and sri venkat reddy, learned counsel for respondent no. 4, was right in his contention that there was nothing in evidence to show that the ingredients of s. 191 of the act are satisfied in the present case. There was some evidence of illness of chinnammi at the relevant time when the gift was made. But there is nothing in evidence to indicate that the gift was made in contemplation of death. The death of chinnammi four days after making of the gift could, for all one knows, be a matter of accident. Just because death followed a gift, it does not make the gift a gift in contemplation of death within the terms of s. 191 of the act. P. Ws. 3 and 4 in their evidence did not indicate that chinnammi said anything contemplating death. P. W. 4 stated that chinnammi was laid up with fever about 10 days. The event of death of chinnammi within 4 days following the declaration of gift seems to have given scope for urging that the gift made by chinnammi was one in contemplation of death falling under s. 191 of the act. There is absolutely no evidence to support that the gift of the jewellery in question was in contemplation of death and, therefore, as rightly contended by sri venkatareddy, the provisions of s. 191 of the act have no application whatsoever. It is, therefore, unnecessary to consider further whether s. 191 of the act has application to hindus.

(11) This does not, however, solve the question under consideration. There is a concurrent finding of fact by the courts below that chinnammi made an unequivocal declaration of gift of jewellery in favour of the appellants in the presence of p. Ws. 3 and 4. It is also in evidence that it is true that chinnammi directed p. Ws. 3 and 4 to inform defendants 1 and 2 regarding the gift made by her of the jewellery which was lying in safe custody with d - 1 and d - 2 in favour of the appellants and ensure that the jewellery is delivered to them. The only dispute is that in order to make the gift valid within the terms of s. 123 of the t. P. Act there is ;no delivery of the jewellery by the donor chinnammi to the appellants who are the donees. I consider in the special circumstances of this case it must be held that there is delivery of jewellery by the donor chinnammi in favour of the donees, the appellants. In the admitted absence of d - 1 and d - 2 it was impossible to give physical delivery of the jewellery to the appellants. In making the unequivocal declaration of gift and in directing p. Ws. 3 and 4 and others to convey her instructions to d - 1 and d - 2 to deliver the jewellery to the appellants who are the donees it must be held tat chinnammi effected such delivery as she was capable of at the relevant time. Shri subrahmanya narsu, the learned counsel for the appellants relied on the decision of the madras high court in ayeeshee bivi v. Mohd. Alim, air 1964 mad 309 in support of his plea that physical delivery of property to the donee is not necessary in every case. Learned counsel contended that the requirement of delivery, for purpose of s. 123, is not that, irrespective of the circumstances, there should always be physical delivery. The requirement is only that there should be such delivery to the donee as the property which is the subject - matter of the gift is capable of at the relevant time. What delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case, contended the counsel. It is pointed out that in the peculiar facts of this case the donor chinnammi could not have given better deliver y of the jewellery than what she did at the time of making the declaration of gift. The learned counsel also invited my attention to the decision of the supreme court in maqbool alam v. Khodaija, air 1966 sc 1194. The supreme court held in the above case that a gift is valid provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. It is true the above cases arose in connection with the validity of gifts of moveable under mohammadan law. In my opinion this makes no difference because delivery of the subject - matter of gift is as much an essential requirement for the validity of the gift under the mohammadan law as it is under s. 123 of the t. P. Act governing hindus. The principle enunciated in the above decisions regarding the delivery of possession of movable property even under s. 123 of the t. P. Act. There is no difference in the application of legal principles relating to delivery as between the muhammadans and hindus. In my opinion in order that a gift of moveable property is valid under the provisions of s. 123 of the t. P. Act it must be seen whether the donor has done all that he or she can to put the subject - matter of the gift within the power of the donee to obtain possession. If this principle is borne in mind there is no difficulty in resolving the question that has arisen for consideration in the present case. The donor chinnammi had done all that she could to put the jewellery in question within the power of the appellants to obtain possession of making an unequivocal declaration of gift in favour of the appellants who accepted the gift and by conveying instructions to ensure that the appellants obtain possession from defendants 1 and 2 who were in safe custody of the jewellery. In my opinion, therefore, the gift o the jewellery by chinnammi in favour of the appellants is perfectly valid and the appellants are entitled to claim possession of the jewellery pursuant to the gift made by chinnammi.

(12) I accordingly set aside the order of the appellate court and restore the order of the trial court and direct that the appellants be put in possession of the jewellery which is currently lying deposited in the court. The appeal is allowed. In the facts and circumstances the parties shall bear their own costs in this appeal.

(13) Appeal allowed.