The Chief Justice. — The case turns mainly on the interpretation of a deed of gift Ex. I.* In my judgment the proper interpretation of the document is that it is a gift in presenti or a transfer in presenti of the property in question in consideration of the defendant agreeing to maintain her mother the donor during her life time and to pay the necessary monies for the funeral expenses of the mother on her death, and I do not agree, with the learned Judge who speaks of it as a testamentary document by which he meant that it was not to come into operation until after the death of the mother. On that view the obligation to maintain will not arise until the death of the mother. That, in my view, would be a most improbable document for the mother to have executed under the circumstances. The daughter was herself entitled to ⅞ of ½, that is of the whole and in all human probability she would also receive on the death of the mother what the mother could convey to her or leave to her by will, and there would be no point in providing under a document that the daughter was not to get the property at once although she, a younger woman, should be obliged to look after the property, pay all expenditure in respect thereof and maintain the old lady during the rest of her lifetime in the future.
It is said that under the Mahommedan Law in respect of such documents, in order that it should be effectual and in order that it cannot be revoked at the Will of the donor, there must be one of two things, either the actual handing over the possession to the donee or actual payment of the consideration by the donee to the donor. The Privy Council in Chaudhri Mehdi Hasan v. Muhammad Hasan(1) referred to two classes of cases (1) a gift properly so called, that is to say, a present without consideration at all in which cases there must, according to every system of law, be delivery of possession; and (2) a gift coupled with consideration, and their Lordships pointed out in the latter case that delivery is not necessary, but the actual payment of consideration must be proved, as also the bona fide intention of the donor to divest himself in presenti of the property and confer it on the donee. Their Lordships were not dealing with a case where the consideration is not to be actual payment but something to be done in the future. Mr. Ameer Ali states that in the kind of gift which is called hiba-bil-ewaz the deed is revocable as long as the condition on which it is granted is unfulfilled. It may well be that there is a distinction between a gift which is conditional and a gift which is for good consideration to be performed in the future. But I wish to guard myself by pointing out that it is possible that the latter stands on a different footing, but for the purpose of this judgment, I am prepared to assume that the promise to maintain and the promise to pay the funeral expenses in future is such a condition that if any part thereof is not fulfilled the gift is liable to be revoked. But, in the view that I take of this case it is unnecessary to consider that, because possession was in fact handed over by the donor to the daughter, the donee. This is one of those cases in which the donee was in physical possession of part of the property at the time of the grant, and excepting the part in the possession of the donor the rest of the house was in the possession of tenants, and one finds that immediately after the deed all the ground-rent is paid and all the taxes in respect of the property are paid by the donee, and that from that day forward the rent payable by the tenants is collected by her and the tenants with the consent of the donor, the mother, attorned to the daughter. That they attorned is clear because they entered into leases with the daughter. The mother stood by and took no steps when the daughter sued for the recovery of rent, and the mother also took no steps in any way to prevent the tenants from paying the rent to the daughter. I am therefore quite clear in this case that sufficient possession was given by the donor to the donee to make the gift an effective one.
The other matter is the question of some words appearing on the original deed to the effect that the property had been left in the possession of the daughter and that she was to be free from that date that is, 17th April, to enjoy it. These words were added after the original deed was signed and attested. But there is evidence that they were there when the document was taken to the Registrar by the donor and the donee together, and was presented between 1 and 2 P. M. on the 18th April. The donor being an illiterate woman, it was the duty of the Registrar under R. 59 of the Rules framed under the Registration Act to read over and see generally though not necessarily in detail that the old lady knew what she was doing. I have no doubt that he did so. Speaking for myself, I can see no reason at all why these words should have been fraudulently interpolated between the 17th and 18th April. At that time it is common ground that the whole of the family were on good terms with each other and why the son-in-law and the daughter should fraudulently put in some words saying that they were in immediate possession and take the risk of this matter being discovered before the Registrar, I cannot understand. The intelligible solution of the matter is this. The deeds speak of something to be done namely, delivery of possession. The gift is made and the next thing after that is to prove possession. I see nothing unusual in having a deed of gift first and then just before the document is registered an endorsement upon it that possession has been given. In these circumstances I disagree with the judgment of the Court below. This appeal will be allowed, and the costs of the appeal will be paid by the respondents.
Wallace, J.—I agree. I am satisfied that the plaintiff signed the so-called interpolation in Ex. I. In consequence the onus of proof that she did not give up possession rested on herself. That onus she has not in my view discharged. Since present possession was given the document cannot be testamentary dispossession and, as possession has been delivered it constitutes a valid gift under the Mahommedan Law. I am satisfied that there was a clear intention by the plaintiff to divest herself on the date of Ex. I of her right over this property that she did so divest herself, that she delivered possession and that therefore the transfer under Ex. I. was irrevocable.
K.V.SAppeal allowed.