The first contention of the appellant's (defendant's) learned Vakil is that the suit was cognizable by the Presidency Small Cause Court and hence the City Civil Judge had no jurisdiction over it.
The first prayer in the plaint prays for the declaration of the plaintiff's title to the money in the hands of a third person (The Oriental Government Security Life Assurance Company). A declaratory suit is admittedly not cognizable by the Presidency Small Cause Court. But it is argued that the prayer for the said declaration is only an incidental relief and that the prayer for the consequential relief of delivery (a) of the promissory notes issued by the Insurance Company and now in the defendant's hands and (b) of the assignment deed executed by the defendant in the plaintiff's favour is the only prayer which should be considered in deciding the question of jurisdiction.
If the declaration was required by the plaintiff solely for the purpose of getting the consequential relief she claims in this present suit, and if that consequential relief was a complete relief, the argument would be valid as supported by authorities. But, it is the monies in the hands of the Insurance Company that the plaintiff finally wants to obtain through the declaration of title (the possession of the promissory notes and the assignment deed being only the intermediate means) and where a declaration of title to monies in third person's hands is prayed for and where the recovery of the monies themselves could not be sued for in the same suit, the declaratory relief is not a merely incidental or subsidiary relief which could be ignored in deciding the question of jurisdiction.
The next contention of the appellant is that the unregistered assignment deed, Exhibit I, in the plaintiff's favour was void as not having been made by a registered instrument or by delivery of the gifted property and as being opposed to the Mahomedan Law (Sects. 123 and 129 of the Transfer of Property Act). The assignment being of moneys due under a policy (or under promissory notes which might supersede the policy), it is an assignment of an incorporeal right and the technical doctrines of Mahomedan Law as to gifts should not be applied in all their original rigidity (Ibrahim Goolam Ariff v. Saiboo.) According to the Hanafi Law again (Ameer Ali, Vol. I, pages 65, 73, 75 and 76) gifts and other transfers of incorporeal rights can be validly made, the condition as to delivery not being applicable to that kind of property, provided, however, the donor does all that he could be reasonably expected to do to put the donee in a position to get the benefit of the transferred incorporeal right and the donor divests himself of all the indicia of title to the right gifted away. On the facts found by the Lower Court (such finding on the facts not being attacked before us), the donor did do all such acts and we think that the gift of the defendant's rights under the policy is valid under the Mahomedan Law.
Next it was argued that there was no gift at all, by the defendant to the plaintiff vesting any present right in the insurance moneys in plaintiff and that the assignment deed gave the plaintiff only a contingent interest in those moneys, contingent, that is, on her surviving the donor. We think that on the true construction of the deed, he gave her a present vested interest in those moneys with a condition that the right shall become divested on the donees dying before the donor. It is not a contingent gift but a present gift subject to a condition. According to the Hanafi Law governing the parties, the condition is futile and the gift should be treated as an absolute gift (See Ameer Ali, pages 133 and 134).
Another argument advanced on the appellant's side was that as the donor reserved to himself a contingent right in reversion, he did not do all things which could be done to divest himself of the incorporeal right in question. The reservation being legally invalid the only question to be considered is whether he subsequently did all that had to be done to complete that unreserved gift. The acts necessary to complete the gift of an incorporeal right have nothing to do with the invalid conditions entered in the gift deed and in a consideration of the question whether the donor had done the necessary subsequent acts to divest himself of and to clothe the donee with all the indicia of title, the fact that the gift deed contains an invalid condition is irrelevant.
It was further contended that as the donor reserved to himself the right to the bonuses due under the policy, the gift is invalid under the Mahomedan Law. No authority has been quoted before us to support the startling proposition that if a Mahomedan wants to make a gift relating to a particular property (say a house) he must make a gift of the entire property and not of a defined portion thereof.
Lastly, we are inclined to hold that the claim against the Insurance Company being an actionable claim (see illustration (ii) to Sect. 130 of the Transfer of Property Act), Exhibit B was complete and effectual to transfer all the defendant's rights in that claim in the plaintiff's favour. A transfer, even by way of gift, of an actionable claim is not governed by Chapter 7 of the Transfer of Property Act which relates generally to gifts. Sect. 129, which saves the rules of Mahomedan Law relating to gifts governed by Chapter 7. has no application to a transfer by way of gift governed by Sect. 130 (which occurs in Chapter 8 of the Act).
In the result the appeal is dismissed with costs.
S. S.
Appeal dismissed.