MT ANANDI DEVI Vs. MOHAN LAL

JUDGEMENT

(1.) This is a first appeal from the judgment of the Subordinate Judge of Mainpuri. The plaintiff brought an action for possession of a 20 biswas zamindari share in Mahal Mohan Lal, Mauza Birsinghpur, Pargana Kuraoli.

(2.) The plaintiff's case was that her father, Mohan Lal, had by a deed of gift, dated 7 June 1919, given this property to his wife, Mt. Kapuri, that in 1921 Mt. Kapuri died, and she (the plaintiff) and her sister then became the heirs to their mother's stridhan; that in 1924, by two sale deeds, dated 19 January and 14th April, Mohan Lal, her father, having repented of the gift to his wife and in fraud of his own daughters, sold the property to the other defendants in the case. The plaintiff prayed for a decree for possession.

(3.) The defendants admitted the gift, but said that the gift was fictitious and was never acted upon, that Mt. Kapuri had never accepted the gift and that it was therefore void. The learned Judge has found that the gift was a real gift intended to be acted upon, but that the wife never having accepted the gift, it was void as against subsequent vendees. He therefore dismissed the suit; and the plaintiff appeals. We accept the findings of the learned Judge as regards the value to be attached to the oral evidence called on behalf of the plaintiff, and his finding that an express acceptance by Mt. Kapuri has not been proved. The learned Judge however merely finds acceptance not proved, because he disbelieves the actual case set up by the plaintiff as regards express acceptance. He never directed his mind to the vital question as to whether there was proof of acceptance within the meaning of Section 3, Evidence Act. It has been argued here by counsel for the respondents that the only acceptance under Section 122, T.P. Act, contemplated by that section is an express acceptance. We however do not find anything in the section to limit acceptance to an express acceptance, and we must take it that acceptance may be either express or implied. As the learned Judge has not considered the question of an implied acceptance based upon circumstantial evidence at all, we must consider it. It has been argued by counsel for the appellant that the law in India based upon Section 122, T.P. Act, is similar to the Common law of England with regard to acceptance. There is no doubt that in England the law is that acceptance of a gift will be presumed, unless dissent is shown. That would mean that in this case, it would be for the defendants to prove that Mt. Kapuri had dissented from the gift. Lord Halsbury in his Laws of England (Vol. 15, p. 418) says: 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 be of an onerous nature or of what is called an onerous trust.