GIRJAPRASAD CHINUBHAI Vs. PURSHOTTAM VITHALRAI VYAS

JUDGEMENT

(1.) This case originated in an application to the Subordinate Judge in the matter of the insolvency of one Vyas Purshottam Vithalrai under the provisions of the Bombay Provincial Insolvency Act for an order that, the house mentioned in the application should not be sold by the Receiver as belonging to the insolvent's estate. It would appear that the house was the property of the late Sir Chinubhai. "We assume for the present purpose that Sir Chinubhai gave possession of the house to the insolvent's father Vithalrai. No document was passed by Sir Chinubhai so as to transfer the title from himself to Vithalrai. But Vithalrai passed a document to Sir Chinubhai which, after reciting that a gift had been made to him of the property, stated that he had been put in possession of the house on certain conditions. He admitted that he and his heirs had no right to mortgage the house or sell, or create any charge on it. They had only the right to reside in the house. The insolvent mortgaged the house to one Mahant Jugaldas Laldas, who opposed the application made by the son of Sir Chinubhai to prevent the Receiver from selling the house.

(2.) The trial Court held that the insolvent had no saleable right to the house but had the right of occupancy only and therefore the Receiver could not put up the house in question for sale. The District Judge reversed this order holding that there had been an irrevocable gift of the house by Sir Chinubhai to the father of the insolvent, while the condition in restraint of mortgaging or selling the property was void, so that the title in the house was in the insolvent and not in the heir of Sir Chinubhai. The learned Judge said: On all this evidence oral and documentary it appears to me that Sir Chinubhai intended to make a gift of the house to a Brahmin on the occasion of his daughter's death. There is no provision for eviction or re- entry in case of breach and it is impossible in, my opinion, to construe the document as lease. But if it is not a lease it can hardly be anything else but a gift, and a religious gift.

(3.) If this document had been executed by Sir Chinubhai in favour of the insolvent's father, and contained words sufficient to pass a title in the property to him, then undoubtedly it would have constituted a gift. The question would then arise whether it would be a conditional gift which restrained the power of the donee with regard to mortgaging or selling the property. Bat this document is only evidence of an oral assignment which had been made between Sir Chinubhai and the insolvent's father. Assuming that Sir Chinubhai intended to make a gift of the property to the insolvent's father, he could not pass the title in the property without complying with the provisions of Section 123 of the Transfer of Property Act, which says: For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.