1. The property in suit is an area of 6 cottas odd appertaining to the occupancy holding of defendant 2 Janki Mahton. By his first wife Janki had a son, who died leaving a son named Parmeshwar. After the death of his first wife he married a widow whose son by her first husband is defendant 1 Jhonti. Jhonti has two sons named Rameshwar and Rupan. On 4th July, 1902, Janki executed a tamliknama dividing his property in equal shares between his three grandsons, Rameshwar, Rupan and Parmeshwar. On 25th of November 1911 he revoked that tamliknama and on 14th March, 1912 he executed a deed of sale in respect of the land in suit in favour of the present plaintiff. In the course of the settlement proceedings, which took place before the tamliknama, Jhonti was shown as an under-raiyat in respect of the land in suit and the plaintiff now institutes the present action for the purpose of ejecting defendant 1 under the provisions of the Bengal Tenancy Act. Defendant 1 alone contested the suit. The Munsif found that the tamliknama was a gift, that it was valid and that at the time of the kobala in favour of the plaintiff defendant 2 had no saleable interest in the land in suit. Therefore the plaintiff's suit was dismissed. On appeal the learned District Judge finds that the document is not a will. He does not exactly agree with the learned Munsif's view that it is a deed of gift, but thinks that it is a “deed of settlement” of family property. He finds that it was valid and that, therefore, the plaintiff by his purchase bought nothing. He has accordingly dismissed the appeal. The present second appeal is preferred by the plaintiff.

2. Now the first question which arises is, what is the construction to be put on the tamliknama. I have gone through the document very carefully and I agree with the view of the learned Munsif. It is quite clear that it is not a will, it effects a present transfer of the donor's interest aud does not speak from the death of the testator. It is true that it speaks of the possession of the donee after the death of the donor; but having regard generally to the whole document and in particular to the passages which relate to the power of the donor to transfer the property during his lifetime and also to the condition imposed upon the donees that they shall have no power to divide the property or to sell any part thereof during the lifetime of the donor, it is quite clear to my mind that the intention of the donor was to divest himself of all his present interest in the property and not to create a testamentary devise in respect thereof. The point, therefore, as to the construction of the deed is found against the plaintiff. I am unable to understand how the learnel District Judge distinguishes between a deed of gift and a deed of settlement in this connexion. Ordinarily a deed of settlement refers to a compromise of family disputes where an antecedent, title in the parties is assumed. Here there is no suggestion of any antecedent title in the donees and all that the document does is to transfer the title of the donor to the donees. The deed cannot, in my opinion, possibly be a deed of settlement.

3. Furthermore, the circumstances of the family at the time of the execution of the tamliknama are quite consistent with the view that the deed was intended to operate as a present transfer and not as a testamentary disposition, Parmeshwar was an infant, Janki's wives were dead, the only persons for whom he would have to provide after his death would be his stepson and his three grandsons. The Munsif finds that it is not clear what the exact arrangements between Janki and. Jhonti were immediately previous to 1902, but be finds as a fact that after the death of Janki's second wife, Jhonti and his two sons came to live with Janki and Parmeshwar and that they were joint in food and property with him at the time of the execution of the tamliknama. The Munsif is of opinion that the Record of Rights showing Jhonti as an under-raiyat under Janki in respect of the lands in suit is wrong and that Jhonti's statement that be used to cultivate the lands jointly with Janki receiving one-third share of the produce stands uncontradicted and must be accepted. The learned Munsif further finds that although 1 bigha 2 cottas out of the total lands of Janki were recorded in the zamindar's sherista as the tenancy of Jhonti, the entry was in reality a benami one and the whole 4 bighas odd belong to Janki. The learned vakil for the appellant before me strongly urges that the learned Munsif has made a case for Jhonti which is inconsistent with the case made by him in the written statement.

4. I cannot agree with this. As I read para. 7 of the written statement I do not understand Jhonti to mean that there was a complete separation, indeed such a separation would be unintelligible because there could be no reason why Janki should by oral gift make over 1 bigha odd to him. Para. 7 is quite consistent with the view that what Jhonti intended to plead was that there was permissive occupation and that nominally he stood recorded as a tenant in the zamindari sherista and paid rent to the zamindar through Janki. That this was so is quite clear because at the end of the paragraph, Jhonti supports the gift in favour of the three grandsons and that was the footing on which he resisted the plaintiffs' suit before the Munsif. He did not set up his own title, but he contended that as the gift to the three grandsons was valid and operative the plaintiff had purchased nothing. In my opinion, the learned Munsif's view is correct. His findings of fact were apparently not challenged before the District Judge and, therefore, I must assume that so far as the facts are concerned the findings are final. The learned Munsif further finds that from 1902 to 1911 the parties continued to live together inspits of the transfer to the three grandsons and it was only when Janki fell out with Jhonti and his two sons that the idea of revoking the gift came into Janki's heand. This being the state of affairs, I am quite satisfied that there was nothing unnatural in Janki's making a complete transfer of his rights in the land in suit in favour of the three grandsons.

5. If then the document is a gift, the next question is whether it is valid. Now the first objection taken as to validity is that there was no delivery of possession. The learned vakil for the appellant relies upon the judgment of their Lordships of the Privy Council in Mirza Sadik Hossein Khan v. Hoshim Ali Khan(1). That was a case between Mahomedans and does not apply here. I think it is quite clear that among Hindus gift made subsequent to the Transfer of Property Act do not require delivery of possession if there is registration, Dharmsodas Das v. Nistrarini Dasi(2). Their Lordships of the Privy Council had occasion to examine the law before the Transfer of Property Act in Kali Dass Mullick v. Kanhaya Lal Pandit(3) and came to the conclusion that delivery of possession was not necessary if the donor can be shown to have done all that it was possible for him in the circumstances to do, and that was also the accepted principle in Joitaram v. Ram Krishna(4). The learned vakil for the appellant replies that in this case Janki did not do all that was in his power to do, because he did not get the names of the grandsons registered as tenants in the zamindari sherista. In my opinion it was not necessary for him to do this. Jhonti's two sons were of full age and could have themselves gone to the zamindar and asked him to register their names. But even if it were conceded that delivery of possession is necessary, it is to be noticed that Parmeshwar was an infant and, therefore, Janki was competent to accept delivery of possession on his behalf, be that with regard to Parmeshwar, at any rate, there was no defect on this ground. The next objection to the gift is that there was no acceptance. Now it is undoubtedly essential to a Hindu gift that there should be acceptance. Here acceptance on behalf of Parmeshwar can be presumed to have been made by Janki. With regard to the other two grandsons the legal presumption of acceptance does not seem to my mind to have been displaced. Lord Halsbury observes Vol. 15, p. 418, of his Laws of England.

“Express acceptance by the donee is not necessary to complete a gift. It has long been settled that the acceptance of a gift by the donee is to be presumed until his dissent is signified even though he is not aware of the gift, and this is equally so, although the gift may be of an onerous nature, or, of what is called ‘an enerous trust.’”

6. Without going so far as this, I think having regard to the circumstance of this case, an inference may be drawn that Jhonti's two sons did accept the gift, which was a very advantageous one for them, and that the plaintiff has not shown anything to the contrary. In fact the finding that the donees continued to cultivate the property from 1902 to 1911 is strong evidence of acceptance. There is also the further fact that the deed of gift was in the custody of Jhonti for eight or nine years and was produced in Court by a mukhtear to whom Jhontihad delivered it for custody. Upon the finding of the Courts below that Jhonti's interest was not adverse to that of his sons his custody was for their benefit. The learned Munsif finds this and the learned District Judge does not displace that finding.

7. In my opinion the learned Munsif is right in holding that there was acceptance by Jhonti's sons. Finally there is the circumstance that even if the deed was invalid by reason of non-delivery of possession or absence of acceptance as regards Jhonti's sons, there was both delivery of possession and acceptance on behalf of Parmeshwar by Janki and the effect of any invalidity as regards two of the donees simply is that the whole property passes validly to Parmeshwar. So far, therefore, as the plaintiff is concerned his kobala would in that case pass no title to him. The result, therefore, is that from whatever point of view the case is looked at, the decree of the Court below is right and the appeal must be dismissed with costs.

V.S/R.K

8. Appeal dismissed.