P KANAKASABAPATHY MUDALIAR Vs. HAJEE OOSMAN SAHIB

JUDGEMENT

(1.) 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 Mahomedan firm, styled Messrs. Oosman Hassan & Co., 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.

(2.) 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. Section 5 of the Indian Trusts Act says : "No trust in relation to moveable 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." Section 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.

(3.) A number of cases have been cited before us. The nearest to the facts of the present case appears to be Bat Mahakore V/s. Bai Mangla (1911) ILR 35 B 403. 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 constituted 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/s. Abdul Azeez Sahib (1916) 42 IC 684 at 689 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 Jijibhai and Ors. V/s. Sonabai (1865) 2 Bom. HCR 139 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 Pestanji 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 Natha Gulab and Co. V/s. Shatter and G.I. P. Ry. (1923) 25 Bom. LR 599 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 V/s. The East Indian Railway Company (1884) ILR 6 A 634 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 account, 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.