The Officiating Chief Justice. — This suit was dismissed upon a demurrer, as the learned Judge was of opinion that the plaint disclosed no cause of action. No evidence was taken on either side. From the allegations in the plaint, it appears that the plaintiff, a godown keeper, in the employment of a Muhammadan firm, styled Messrs. Oosman Hassan and Company, was credited with a bonus of Rs. 3,500, out of the profits of the firm, in consideration of the good services rendered by him and of the fine profits made by the firm. The plaintiff alleged that this bonus was carried to his credit in the firm's books in 1919, and that in 1920, he was allowed to draw out of it Rs. 420, but that the defendants refused, in spite of his demand, to pay the balance.
The question of law is, whether on the facts alleged, the entry in the firm's books constituted a completed gift, and whether the defendants were trustees or depositees, as regards the undisbursed amount of the bonus. Sect. 5 of the Indian Trusts Act says:
“No trust in relation to immoveable property is valid, unless declared by a non-testamentary instrument in writing, signed by the author of the trust and registered, or by the will, of the author of the trust…………or unless the ownership of the property is transferred to the trustee.”
Sect. 123, of the Transfer of Property Act declares that,
“for the purpose of making a gift of immoveable property, the transfer may be effected, either by a registered instrument signed, or by delivery.”
The defendants' liability, therefore, turns on the question, whether there was any delivery or transfer of ownership to the plaintiff.
A number of cases have been cited before us. The nearest to the facts of the present case appears to be Bai Mahakore v. Bai Mangla(1). In that case, there was a credit entry, made by Damodardas in his account books, in the name of Harkore, his wife. Chandavarkar, J., held that this constitutes a valid trust in favour of Harkore. Heaton, J., held that Damodardas became a depositee and that the addition of interest to the deposit account and the debiting of money spent on pilgrimage was a further indication of the relations of the parties being those of depositor and depositee. In Sabjan Sahib v. Abdul Azeez Sahib(2), Abdur Rahim, J., held that a mere entry in books of account did not create a completed gift, on the facts of that case and he attached much importance to the fact that Sabjan, in whose name the credit stood, did not draw upon the amount standing at his credit. The present case may be distinguished by the fact that there was a drawing upon the fund. In Sir Jamsetji v. Sonabai(3), Couch, J., considered all the circumstances of the case, as to whether there was an intention, on the part of Sir Jamsetji Jijibhai to create a trust in favour of Sorabji Pestonji and as indicating that intention, he had regard to the manner in which the money was dealt with, which was placed on the credit side of the account. He held in that case that a trust was created, because there was no instance in which a sum of money had been placed on the credit side of the account, in which the donor afterwards attempted to deal with the money as his own. In Natta Gulab & Co. v. Shakler and Great Indian Peninsular Railway Co., a cheque was issued and attached, before it was cashed and before the remittance was made by the Bank to the payee. Similarly, in Janki Das…(Plaintiff); v. The East Indian Railway Company…(Defendant).*, before actual delivery took place, the bonus recommended to an employee of the Railway was attached, in execution of a decree, obtained against him. In the present case, there is not only the allegation that the amount of Rs. 3,500 was credited to the plaintiff, in the firm's accounts, but there is further the allegation that he was allowed to operate upon this account. If the firm had paid out the bonus into the hands of the plaintiff and if, the next moment, he had deposited it for safe keeping with his employers, the position would have been in no way different, from that disclosed by the entries as they were made. On the alleged facts, which are, of course, open to be rebutted at the trial, it appears to us that there is a case of a completed gift and a transfer of ownership, in favour of the plaintiff; and, if ownership in the bonus was completely transferred and there was more than a mere promise without consideration to give the plaintiff a bonus, it is immaterial that the amount was originally of the nature of a bonus.
The case must go back, for hearing evidence and disposing of it upon its merits. The defendants have since the disposal of the suit become insolvent and are now represented by the Official Assignee. The respondents must bear the cost of this appeal, which will come out of the estate. The costs of the suit will abide and follow the result. The appellant will be entitled to a refund of the Court fee on the appeal.
Srinivasa Aiyangar, J.—I agree with my Lord the learned Chief Justice in the order proposed and only wish to add this. I do not at all see why the plaintiff's claim should not be deemed to be based on contract, apart from any question whatever of a contemplated gift, or a completed gift, or apart from any relationship, between the parties, as depositor and depositee, or creditor and debtor. No doubt, if the services of the plaintiff had been rendered, only for the salary stipulated, a promise of a grant of bonus to him would not be a promise for past consideration. But all those who know anything of these Muhammadan firms know that apart altogether from the salary paid to the servants of the firm, the expectation is held out to them, according to the Mamool or practice, that, if they should render exceptionally good service, during the period of the settlement, they would be rewarded, at the time of the settlement, by the grant of substantial bonus. If in these circumstances, the servants put forth extra work, which the masters find satisfactory, and in consideration thereof, a bonus is promised to them, it seems to me that it is really, in law, a promise for past consideration, which is good under the Indian Law. It is for the purposes of establishing the implied agreement in such firms that, I take it, the plaintiff has referred in his plaint to the previous settlements and to the grant of bonus to the plaintiff at those settlements, to such bonuses having been credited at every settlement to his account and to his having operated upon the amount, so credited. I, therefore, consider that, even apart altogether from any question of gift, completed or not the plaintiff has a case on the footing of a contract, which is clearly sustainable. The averments in the plaint are sufficient for the purpose. I therefore agree to the order proposed.
C.KCase remanded.