The Judgment of the Court was as follows:—

This appeal is on behalf of Defendants Nos. 1 to 4 and 6 and arises out of a suit commenced by the Plaintiff for establishment of her title to a one-third share of the properties described in the schedule to the plaint and for recovery of possession of the same jointly with the Defendants.

The Plaintiff's case was that the properties in suit originally belonged to three brothers, namely, Bhabataran, Nimai and Rakhal, in equal shares. Of these three brothers Rakhal died first, leaving as his heiress a childless widow named Kiranbala, who was Defendant No. 5 in the suit. After that Bhabataran died; he had no wife or son living at the time of his death and was survived by a widowed daughter who is Defendant No. 6 in the suit and who could not inherit his property according to the rules of the Hindu law. Nimai, the surviving brother, inherited the one-third share of Bhabataran and this together with his own one-third gave him a two-thirds share in all the scheduled properties.

Nimai died in 1918, leaving behind him his widow Khudumoni and five daughters of whom the Plaintiff is one. Khudumoni died within a few months after her husband's death and, according to the Plaintiff, the two-thirds share of Nimai in all the properties devolved, after the death of Khudumoni, upon his maiden daughter, Abhoya. Abhoya was married to Haripada, Defendant No. 1, and had two daughters and one son who are Defendants Nos. 2 to 4 in the present suit. Abhoya died in April, 1935, and the Plaintiff's case is that the property which she inherited from Nimai devolved, after her death, on the two surviving married sisters, namely, the Plaintiff and pro formâ Defendant No. 7, the other two sisters having died in the meantime. The Plaintiff, it is said, went to possess the properties sometime in Chait, 1342 B.S, but was obstructed by the Defendants which obliged her to institute the present suit.

In paragraph 6 of the plaint it was specifically stated that the Ka Schedule properties were incorrectly recorded in the C.S records as debutter property of the family deity Sridhar Jiu. In case these properties were found to be debutter the Plaintiff claimed to recover joint possession of the same to the extent of her share on establishment of her title as shebait by right of, inheritance from her father, Nimai.

A number of defences were raised by the contesting Defendants and they may be classified under three heads:— In the first place, objections were taken-to the frame of the suit and it was contended that the Ka Schedule properties being debutter properties, it was incumbent upon the Plaintiff to make the deity itself as also the other shebaits parties to the suit.

The second point raised related to the one-third share, of Bhabataran and it was urged that though Defendant No. 6, as a childless widowed daughter, could not inherit that share, she had enjoyed and held that share adversely against all the co-sharers since the death of her father and thereby acquired a good title to it by adverse possession. This share, it was said, the Defendant No. 6 subsequently made gift of in favour of Defendant No. 2 who was the present owner of the same.

The third and the main defence taken by the Defendants, was that Abhoya did not hold the properties in the limited interest of a Hindu female heir, but in absolute ownership by virtue of an ante-nuptial agreement and a gift made by her father during his life-time. The result was that the properties were stridhan properties in her hands and devolved after her death on her own children to the exclusion of her father's, heirs.

The story told by the Defendants as regards this ante-nuptial agreement was as follows: Nimai who had no son wanted to have a son-in-law who could stay with him in his house and look after his property. As the other sons-in-law were not willing to remain in his house, he wanted to marry his youngest daughter Abhoya to somebody who could consent to live with him as his Gharjamai. Haripada, Defendant No. 1, was selected for this purpose and he was brought into the family some years before he was actually married to Abhoya. Abhoya being extremely young the marriage could not be solemnised during the life-time of Nimai, but the latter made an ante-nuptial promise to the effect that if Haripada would marry Abhoya and remain in his family as his Gharjamai, he would leave all his properties to his daughter Abhoya in absolute right. In pursuance of this agreement it is said he made an oral gift of all his properties including the shebaiti right in favour of Abhoya just before his death. After the death of Khudumoni Haripada married Abhoya and remained all along in the family in accordance with the terms of the ante-nuptial agreement. The defence, therefore, was that Abhoya did acquire an absolute right in all the properties both by oral gift as well as by, the ante-nuptial agreement which was perfected by her marriage with Haripada.

The Munsif who tried the suit decided all these points in favour of the contesting Defendants and dismissed the Plaintiff's suit. On appeal by the Plaintiff all the findings and the decision of the Munsif were set aside and the Plaintiff's suit was decreed. It is against this decision that the present second appeal has been preferred.

Mr. Sitaram Banerji who appears in Support of this appeal has contended in the first place that the Plaintiff's suit was had in law and it was not maintainable so far as the Ka Schedule properties were concerned, without making the deity and the other co-shebaits parties to the suit. I do not think that there is any substance in this contention. As regards the Ka Schedule properties which are found to belong to the deity, Sridhar Jiu, the Plaintiff wants to establish her right as shebait along with Defendant No. 7 and recover possession of the lands as such. The deity's title is not disputed by either side and the whole controversy centres round the point as to whether the Plaintiff has succeeded in establishing her rights to the shebaitship as one of the heirs of her father. To such a suit I do not think the deity would be a necessary party.

As was pointed out by this Court in the case of Bimal Krishna Ghose v. Gunendra Krishna Ghose (1) on the authority of the pronouncements of the Judicial Committee in Promotha v. Pradyumna (2) and Kanhaiya Lal v. Hamid Ali (3), that in all cases where the interests of the deity are likely to suffer, it is absolutely necessary that the deity should be added as a party to the suit and should be represented by a perfectly disinterested person.

In the present case it seems clear that the interests of the deity are not likely to be affected in any possible way as a result of the decision. The only point in controversy is as to whether the Plaintiff is a shebait or not and as shebaitship itself is a property, any dispute regarding such property as between rival claimants none of whom challenges the title of the deity cannot possibly affect the interest of the deity. I do not think also that the other alleged co-shebaits are necessary parties to the suit. It is admitted on both sides that none of these other shebaits are interested in the property described in Schedule Ka of the plaint and the C.S records do not mention their names. I do not know when the Ka Schedule properties were dedicated to the deity, but it seems clear that these properties were possessed and controlled not by all the shebaits, but belonged to the branch of Uma Charan Bakshi, the father of Nimai, and none of the other shebaits, whoever they may be, have ever asserted any right or title as shebaits to these properties or had any control over the income of them for the purpose of defraying the expenses of sheba and puja of the idol. This being the position, I do not think that the principle enunciated in the case of Narendra Nath Kumar v. Atul Chandra Banerjee , upon which reliance has been placed by Mr. Banerjee, can have any application to the facts of the present case. It is not a suit which the Plaintiff has instituted on behalf of the deity, but it is simply to establish her right and title as shebait to these particular properties; and in this suit to establish her right and title as shebait to certain specified properties none need be made parties who are not interested in disputing, and in fact do not dispute, her claim.

The second contention raised by Mr. Banerji relates to the question of the ante-nuptial agreement and gift upon which the Defendants' case is primarily founded. Mr. Banerji argues that the Court of Appeal below had not come to proper findings on this point and as a matter of fact Abhoya did acquire an absolute right to the scheduled properties both under the oral gift as well as under the ante-nuptial agreement which was perfected by part-performance on her side. Assuming that Nimai had made a gift of all his secular properties and his shebaiti right absolutely in favour of Abhoya before he died and assuming also that the gift was accepted by and on behalf of the daughter, I fail to see how without any registered document a gift of immovable properties could be valid at all after the passing of the Transfer of Property Act of 1882.

sec. 123 of the Transfer of Property Act is applicable to the Hindus and it applied to the Hindus even before the Amending Act XX of 1929 was passed. The old sec. 129 left untouched all the other provisions of Hindu Law relating to gift except matters which came under the purview of sec. 123 of the Transfer of Property Act. Therefore the rule of Hindu law relating to the formalities of a valid gift must be deemed to be abrogated by sec. 123 of the Transfer of Property Act and no gift inter vivos of an immovable property could be validly made after the passing of the Act except by a registered document as contemplated by sec. 123 [vide Lallu Singh v. Gur Narain, and Dharmodas Das v. Nistarini Dasi ].

Mr. Hari Prosanno Mukherjee in reply says that it was not a gift inter vivos but was in the nature of a, donatio mortis causa and consequently the rule of Hindu law relating to such kind of gift was not trenched upon by old sec. 129 as it stood before the passing of the Amending Act of 1929. There is no foundation, however, for a case like this made either in the pleadings or in the evidence. It was nobody's case that the gift alleged to be made by Nimai was in the nature of a conditional gift which could be revoked if he recovered from the illness. On the other hand the case attempted to be made throughout on the part of the Defendants is that as the marriage could not be solemnised during the lifetime of Nimai, Nimai made an irrevocable gift on his death bed for the purpose of making the ante-nuptial agreement entered into before hand complete and final. In my opinion, therefore, the oral gift alleged to have been made by Nimai in favour of Abhoya at the time of his death could not confer a valid title on the latter and it cannot be said that it was her stridhan property which should go to her own heirs after her death.

The other ground upon which Mr. Banerji rests his case is, in my opinion, equally unsupportable. Assuming that there was an ante-nuptial agreement under which Nimai promised to transfer his properties absolutely to Abhoya on consideration of her marrying Haripada who was to remain in the family as Gharjamai, this agreement could not, by itself, create title in Abhoya. Mr. Banerji argues that as in part-performance of the contract Abhoya and her heirs were in possession of the property in pursuance of that agreement, it was no longer open to the Plaintiff who stood in the shoes of Nimai, to recover possession of these properties.

Reliance has been placed in this connection upon the decision of this Court in the case of Pran Mohan Das v. Hari Mohan Das . This case was decided long before the pronouncements of the Judicial Committee in Ariff v. Jadunath Majumdar and Pir Bakhsh v. Mahomed Tahar were made.

As the law has now been authoritatively laid down by the Judicial Committee, the English doctrine of part-performance is not available in India by way of defence to a suit for ejectment except under the provisions of sec. 53A of the Transfer of Property Act and in cases to which that section is applicable. It is conceded by Mr. Banerji that sec. 53A is not applicable to the facts of the present case and, consequently, the doctrine of part-performance cannot be invoked by him in support of his case. Mr. Banerji in the last resort attempted to fall back upon the doctrine of Walsh v. Lonsdale . I do not think that doctrine is also of any assistance to his clients. The doctrine of Walsh v. Lonsdale as is well known is based upon the principle that equity regards all that as done which ought to have been done, and if the Defendant in an action of ejectment had an enforceable right to enforce specific performance of a contract entered into, entitling him to remain in occupation of the land, it would furnish a complete defence to the action commenced by the Plaintiff on the strength of his legal title.

To invite the application of this doctrine it is necessary to prove in the first place that there was a valid contract in pursuance of which possession was taken and the agreement is also of such a description that it was capable of being specifically enforced at a time when the subsequent suit for ejectment came to be determined. The difficulty in the way of Mr. Banerji's clients is this that in the present case Abhoya was admittedly a minor at the time when the contract was entered into and there could be no valid agreement between Nimai on the one hand and Abhoya on the other which could be recognised as binding in law. There could be no talk therefore of any specific performance of such contract at the time when the ejectment suit was commenced. It is also difficult to say that possession was really taken in pursuance of the ante-nuptial agreement in the present case. There is no convincing evidence in this case to show that Abhoya was in possession of the properties during the life-time of Khudumoni. She undoubtedly took possession after the death of Khudumoni, but that certainly could be referable to her character as an heir of Nimai after the death of the latter and it cannot unequivocally refer to the ante-nuptial contract.

This being the position, I have no hesitation in affirming the decision of the lower Appellate Court and in dismissing the appeal.

The result is that the appeal is dismissed. I make no order as to costs in this appeal.

P.C