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  • Ainslie, J.
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Smart Summary

Summary of the Legal Opinion (Regular Appeal from Subordinate Judge of Patna)

Factual and Procedural Background

This appeal arises from a suit to recover possession of property originally claimed by the plaintiff as nearest heir of one Ajoodhya Pershad (deceased). The defendant relied on a registered deed of gift (hibbanama) dated 14 January 1873, alleged to have been executed by Ajoodhya Pershad in favour of Mussamut Taro Bebee (the donee), who was the widow of Ajoodhya's great-grandson Kedarnath. Ajoodhya Pershad died on 23 May 1875.

The Subordinate Judge found as facts that (a) the deed of gift had been executed and registered by Ajoodhya Pershad while of sound mind, and (b) the property was the deceased's self-acquired property. However, the Subordinate Judge also found that there had been no actual transfer/delivery of possession to the donee and therefore treated the gift as imperfect, and decreed in favour of the plaintiff. The defendant appealed; the plaintiff filed a cross-appeal challenging the lower court's finding as to execution of the deed, though that point was not pressed in the High Court because of the state of the evidence.

Legal Issues Presented

  1. Whether the deed of gift dated 14 January 1873 was in fact executed and registered by Ajoodhya Pershad.
  2. Whether a gift by deed that was not accompanied by immediate delivery of possession is operative as against the donor's heirs (i.e., whether the absence of actual delivery rendered the gift imperfect and unenforceable).
  3. Whether, given the relationship and conduct of the parties, Ajoodhya Pershad was holding the property as trustee (in effect, holding possession for the benefit of the donee) from the date of the deed until his death.
  4. Whether any statutory provision relied on by the defendant (specifically reference to section 25 of the Indian Contract Act, IX of 1872, as argued below) validated the gift notwithstanding issues of possession.

Arguments of the Parties

Appellant / Defendant's Arguments

  • The defendant asserted that the deed of gift was valid and had been executed and registered by Ajoodhya Pershad.
  • The defendant contended that the gift was good under section 25 of the Indian Contract Act, IX of 1872 (this contention was raised in the Subordinate Court and overruled there).
  • The defendant produced some evidence intended to show an actual transfer of the property (primarily a banking business) during Ajoodhya's lifetime; this evidence was relied on to support the claim that possession had passed.

Respondent / Plaintiff's Arguments

  • The plaintiff claimed as next-of-kin and maintained that the deed did not effect an operative gift because there was no actual delivery of possession; the Subordinate Judge accepted that argument and decreed for the plaintiff.
  • The plaintiff also at one point appears to have raised the point that the properties might have been ancestral rather than self-acquired, though that point was not pursued before the High Court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Norton's Leading Cases, p. 312 Cited by the Subordinate Judge in relation to the law on gifts and delivery of possession. Referenced by the lower court in concluding that a gift unaccompanied by delivery of possession was imperfect; the High Court noted but did not rely on this text to uphold the lower court's conclusion.
Tagore Lectures, 1871, pp. 35, 36, 38 Authorities cited before the Subordinate Judge concerning the necessity or nature of possession for a valid gift. Cited by the lower court; the High Court considered those authorities unnecessary to decide once it found that the donor held in trust for the donee.
6 W.R. 245 — Maharajah Buksh Singh v. Gunoon Koonwur Case law cited by the Subordinate Judge, which he distinguished in reaching his decision. Not adopted by the High Court; the Subordinate Judge's reliance on or distinction from this case was noted but did not determine the High Court's outcome.
Select Reports, p. 115 (152) — Anundchand Rai v. Kishen (Bunoja) Shows that where a father had been dealing as guardian with property purportedly gifted to a minor son, courts may presume the father held possession for the benefit of the donee (i.e., holding in trust by the donor). The High Court relied on this authority to support the presumption that Ajoodhya Pershad's continued possession and management of the business could properly be regarded as possession for the benefit of Taro Bebee, i.e., as trustee-like conduct making the gift operative despite lack of actual transfer of physical possession.

Court's Reasoning and Analysis

The High Court (speaking through Ainslie, J., with Broughton, J. concurring) proceeded in the following analytical steps, grounded in the record evidence:

  1. Findings of Execution and Registration: The court accepted the Subordinate Judge's factual finding that Ajoodhya Pershad did execute and register the deed of gift. This conclusion rested on direct testimony from several respectable witnesses and on evidence that Ajoodhya caused a mooktearnamah to be produced before the Registrar of Deeds and that the Registrar attended his house to examine it. The Court rejected the suggestion (urged by the plaintiff below) that the deed and the witnesses were the product of wholesale perjury or false personation.
  2. Assessment of Intention: Having accepted execution, the Court asked whether the deceased intended the deed to operate as a gift or whether it was merely a document prepared for some unfulfilled purpose. The Court examined the facts and relationships: Ajoodhya had only one daughter, whose lineage produced two grandsons (Gobordhun and Kedarnath); Gobordhun was estranged, Kedarnath died, and Kedarnath's widow Taro Bebee lived with and cared for Ajoodhya until his death. These circumstances furnished a plausible motive for Ajoodhya to make a lifetime disposition in her favour to prevent future claims by others.
  3. Evaluation of Evidence on Possession: The defendant offered evidence intended to show an actual transfer of the banking business and other property in lifetime; the High Court found this evidence unreliable and open to criticism. Nonetheless, the Court emphasized that the donor's conduct and public acts (registration, publicity of the deed, witnesses' statements that the gift was notorious in Ajoodhya's lifetime) were of significant weight in determining intention.
  4. Application of Presumptions from Authority: The Court invoked precedent (Anundchand Rai v. Kishen) and other authorities to the effect that where the donee is a dependent (or where the donor stands in loco parentis or as guardian relative to the donee), courts will presume that the donor's possession is for the benefit of the donee. In that line of authority, a donor's management of property after gifting it may be treated as the donor holding in trust for the donee rather than evidence of continued ownership.
  5. No Evidence of Revocation: The High Court noted there was "not a trace of evidence" that Ajoodhya had intended to revoke the gift prior to his death, despite the lapse of over two years between the deed and his death. This reinforced the inference that the donor intended the gift to operate.
  6. Conclusion on Possession Issue: On balance, the High Court concluded that while there was no overt handing-over of physical possession to Taro Bebee, the totality of evidence supported the conclusion that Ajoodhya had, from the date of the deed, been holding and managing the property as trustee for her. Therefore the Subordinate Judge's finding that there had been no actual transfer of possession was set aside.
  7. Disposition of the Suit: Because the Court held that the donor was effectively holding in trust for the donee, the controversial doctrinal question—whether a gift unaccompanied by delivery of possession is operative—was rendered unnecessary to decide; the Court did not need to uphold or repudiate the lower court's textual authorities on that precise point.

Holding and Implications

Holding: The High Court set aside the decree of the Subordinate Judge and dismissed the plaintiff's suit with costs. The High Court held that Ajoodhya Pershad did execute and register the deed of gift and, in the factual circumstances of the case, was holding the property from the date of the deed until his death as trustee for Mussamut Taro Bebee; accordingly the gift was effective as against the plaintiff's claim.

Implications:

  • Direct effect: The plaintiff's claim for recovery of possession was dismissed; the appellant (donee) succeeded on appeal and the lower court's decree in favour of the plaintiff was set aside.
  • Doctrinal note: The High Court based its decision on factual findings of execution, registration, and intention, together with a presumption (supported by precedent) that where the donor remains in possession while standing in a guardian-like relationship to the donee, the donor's possession may be regarded as for the benefit of the donee. Because the Court resolved the case on these grounds it expressly declined to decide more broadly the abstract question whether a gift unaccompanied by delivery of possession is generally operative; the Court therefore did not announce a novel general rule beyond the application of established presumptions to the facts before it.

Note: This summary was compiled exclusively from the text of the provided opinion. Where the opinion contained redactions or ellipses (represented in the source by "???"), the summary confines itself to the information explicitly present in the opinion and does not attempt to fill missing passages.

Show full summary ...

    Taro Bebee v. Ghasiram

    Regular Appeal from a decree passed by the Subordinate judge of Patna.

    This was a suit to recover possession of the property and ??? of Baboo Ajoodhya Pershad, mahajun, a resident of Patna the plaintiff claimed as the nearest heir of the decease and ??? defendant, under a registered hibbanama dated the 14th of ??? 1873, executed in her favour by the deceased who was ??? great grandfather of her husband. It appeared that Ajoodhya ??? had only one daughter named Purun Bebee, who had a ??? named Golabi. Golabi had two sons, Gobordhun and ??? Gobordhun was not on good terms with Ajoodhya ??? and for many years previous to the death of the latter ??? not lived in Patna, but the younger brother Kedarnath lived the house of Ajoodhya Pershad after his marriage with Taro Bebee in 1866, and, it seems, died there. After his death Taro Bebee continued to live with Ajoodhya Pershad till his death on 23rd of May 1875, and was the only relative near him. On 14th of January 1873, Ajoodhya Pershad made a gift of all property to Taro Bebee; and, as she alleged, put her into ??? of it, but he continued to carry on the business in ??? name until his death in 1875.

    The Subordinate Judge found that the deed of gift was ??? and was executed by Ajoodhya while in a state of sound ??? that the property was the self-acquired property of Ajoodhya Pershad; but that Mussamut Taro Bebee had not ??? possession of the property by virtue of the deed of gift decreed the plaintiff's claim on the ground that the gift was imperfect one, citing Norton's Leading Cases, 312; Tagore Lectures, 1871, pp. 35, 36, 38; and distinguishing 6 W.R, 245—Maharajah Buksh Singh v. Gunoon Koonwur.

    The defendant had also contended that the gift was good ??? section 25 of the Indian Contract Act, IX of 1872, but contention was overruled. The defendant appealed.

    Evans, for the Appellant. Baboo Mohesh Chunder Chowdhary and Baboo Srish Chunder Chowdhry with him.

    Mr. C. Gregory, Baboo Kally Mohun Doss, and Baboo ??? Nath Chatterjee, for the Respondent.

    The following judgments were delivered by the High Court (1):—

    Ainslie, J.:— One Ajoodhya Pershad died on the 23rd of May 1875 plaintiff in the present suit claims as next-of-kin. The defendant sets up a deed of gift of the 14th of January 1873, ??? by the deceased. The Subordinate Judge who tried the found as a fact that Ajoodhya Pershad did execute the deed forward by the defendant, but he was of opinion that there been no actual transfer of possession, and that consequently gift unaccompanied by delivery of possession was ??? He, therefore, made a decree in favour of the plaintiff.

    The defendant has appealed against that decree, and the plaintiff has also filed a cross-appeal objecting to the finding ??? Subordinate Judge as to the execution of the deed of gift also that the properties claimed by him were ancestral and the self-acquired properties of Ajoodhya Pershad. This ??? point was, however, not pressed, and could not be so in the of the evidence which is on the record. There is next to no evidence on the subject, but such as there is goes to show that the properties were exclusively acquired by Ajoodhya Pershad. In fact one of the plaintiff's witnesses, Gopal Misser, who was examined on commission, states that they were so acquired.

    There is evidence of several witnesses, apparently persons of respectability, who speak distinctly and positively of the execution of the deed of gift by Ajoodhya Pershad. There is also evidence to show that Ajoodhya Pershad, in his lifetime, caused a mooktearnamah to be produced before the Registrar of Deeds, and that officer attended at his house for the purpose of ascertaining the genuineness of that mooktearnamah. Without charging the whole of the witnesses with wholesale perjury, and the witness Gajadhur Lall with having caused Ajoodhya Pershad to be falsely personated before the Registrar of Deeds, it is possible to hold that this deed was not really executed by Ajoodhya Pershad. We are, therefore, bound to come to the same conclusion as the Subordinate Judge has arrived at, that as a matter of fact Ajoodhya Pershad executed the deed of gift and caused it to be registered.

    The question then is, whether Ajoodhya Pershad intended this gift to operate, or whether the document was merely prepared and kept by him for some purpose which he never carried into effect? In this question we must look to the position of the parties. Ajoodhya Pershad himself appears to have had only one daughter, whose daughter was the mother of two sons, Gobordhun and Kedarnath. Taro Bebee, the defendant in the present case, is the widow of one of those great-grandsons, Kedarnath.

    The witness whose evidence I have before alluded to says, that Ajoodhya Pershad was not particular in recognizing the duty of performing ceremonies for his ancestors. It may very well be therefore that he should have thought fit to leave the whole of his property to his daughter's daughter's sons; and that, in order to prevent litigation, he should have made arrangements to dispose of it during his lifetime. There is some evidence to show that the elder of the great-grandsons displeased the old man and left him. The younger died, we do not know exactly when; but from the time of his death Taro Bebee, his widow, appeal have been the only person left of the family, and residing and taking care of her husband's great-grandfather. ??? these circumstances, it is by no means improbable that Ajoodhya Pershad should have contemplated making a gift in his life to Taro Bebee in order to protect her against any claim might be put forward after his death by other members of family.

    The defendant has given some evidence to show that there an actual transfer of property (which in the main consisted ??? banking business) by Ajoodhya in his lifetime. This evidence is, however, open to a good deal of comment, and, in my opinion ought not to be relied upon; but the fact that the defendant attempted to prove something more than the truth, and usually happens in such cases, has given the other side the ??? of being able to comment strongly on the character of evidence of actual transfer, is not to be taken by itself as ??? that the case supported by such evidence is false. There is ??? evidence in the case, principally the evidence of the conduct Ajoodhya himself, which is of great weight. We find not ??? that he took the most public means of declaring his intention making a gift to Taro Bebee by registering this document, that there is evidence, some of it derived from witnesses ??? by the plaintiff, to show that the gift was a notorious fact in lifetime; and one of the witnesses states, that he was ??? of the circumstance by Ajoodhya himself. It is not at all ??? that he should, up to the time of his death, have continued to manage the banking business, and that he should have ??? it on in his own name, although it was his intention Taro Bebee should have the profits of it.

    There are several cases which show that where the donee guardian of the donee, the Courts will presume that ??? possession of the subject of gift by the former is really for benefit of and in trust for the latter. A case cited ??? Select Reports, p. 115(152)—Anundchand Rai v. Kishen ??? Bunoja, shows clearly that, as far back as 1805, it was held ??? although a father had been proved to have been dealing as ??? with property of which he purported to have made a gift, ??? must be taken that he was holding it all the time for the benefit of his minor son. Therefore, although it is clear on the evidence that Ajoodhya Pershad continued up to his death to manage the banking business, yet, as there is nothing to show that he was not doing it for his great grandson's widow, it is a fair presumption that he was acting on her behalf. There is very clear evidence of the intention on his part to make over the property to her, and there is not a trace of evidence of intention of any kind before his death to revoke the gift, although upwards of two years elapeed between the date of the deed and his death.

    It seems to me, therefore, that the finding of the Subordinate Judge, that there was no actual transfer of possession, ought to be set aside, and that we ought to hold that Ajoodhya Pershad was in fact holding from the date of the deed of gift up to the date of his death as trustee for Taro Bebee.

    Under these circumstances the question, whether a gift unaccompanied by delivery of possession is operative or not, does not arise, and it is unnecessary to discuss the cases cited on behalf of the respondent on that point. The decision of the lower Court will be set aside and the suit dismissed with costs.

    Broughton, J.:— I am entirely of the same opinion. The position of the parties was such that it seems to me that the old man Ajoodhya parshad was bound to make some provision for the defendant Taro Bebee, who lived with him during his old age, and who, if he did not make a provision for her, would have been left entirely destitute. It was the most natural thing in the world for Ajoodhya Pershad to provide for her.

    Of his two great grandsons, Kedarnath died, and Gobordhun for some reason or other left him. In the same way his cousin Ghasiram kept away from him. The only person who remained actually living with the old man, was the widow of Kedarnath, Taro Bebee. So that there was ample motive for the gift, and it seems to me that Ajoodhya Pershad would have behaved ??? harshly towards her if he had left her destitute. Having lived in affluence with him, he knew that unless he made Provision for her she would have been left in utter want and unprotected in the world, and therefore he made an arrangement which would obviate that. There is no doubt that he did executed the deed. There is ample evidence to show that; and he registered it, and took the greatest trouble to make it public. The fact of its having been made was known shortly after its execution to the plaintiff himself.

    If the transaction is to be avoided, it must be on very strong grounds. It is said that it falls to the ground because Taro Bebee did not take possession of the property. Several cases have been cited in support of this contention, and several texts of Hindoo law, which go to show that a donor cannot resume a gift after the donee has taken possession; that possession must be shown, in order to make a gift valid as against creditors; and also that a gift is itself imperfect until possession of some sort has been taken by the donee. The evidence of the possession and the nature of the possession necessary to support the gift must vary in different cases, and I think that in a case like this, where the gift has not been secret or merely verbal, but open and by a formal deed, very slight evidence of possession suffices to support it, for possession is only evidence of the gift; and it seems to me that the case reported in the Select Reports, referred to by Mr. Justice Ainslie, shows that the possession of a person like Ajoodhya Pershad, who was in loco parentis as regards Taro Bebee, his donee, was sufficient possession, coupled with the ??? of the fact of the gift and the registration of the deed, ??? make the gift perfect.

    Therefore I agree that the decision of the lower Court shoal be set aside, and the suit dismissed with all costs.

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    Comments

    Taro Bebee v. Ghasiram
    (Jul 22, 1878)