BALA DHONDI SATWADE Vs. BAYA BHAGVANT PATIL

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit to recover possession of certain property as reversionary heir of one Manjula.

(2.) The suit property belonged originally to one Vakuji and the plaintiff is a separated brother of Vakuji, who died leaving Manjula as his widow. She had a daughter named Goja, who was married to one Dnyanu in 1913. On July 10, 1913, Manjula, who was in possession of the property as a Hindu widow, made a deed of gift in favour of her daughter Goja and Goja's husband Dnyanu. Goja was a minor at that time and, therefore, the gift was made to her through her guardian and husband Dnyanu. It is clear that this gift was a joint gift in favour of these two persons. She says in the deed of gift that she had selected Dnyanu as her son-in- law according to her choice and had brought him to her house, and then with reference to both the donees she proceeds :- As you are looking well to my maintenance and I am sure will also look after the same in the future, and as I have no other affectionate relative except you, and as my property is bound to go to you by right of heirship after my death, taking all these facts into consideration I give the following property as gift to you both. Soon after the execution of this gift-deed Dnyanu died in 1915 and Goja died in 1917 during the lifetime of Manjula, who died in 1918. The plaintiff, who is the reversioner living. at the time of Manjula's death, seeks to recover possession of this property on the ground that the deed of gift made by Manjula was void and not binding against the plaintiff, that it did not vest the property either in Goja or in her husband Dnyanu. The property is in the possession of Goja's minor daughter, and she being a daughter's daughter of Vakuji, would not have any claim to this property in preference to the; plaintiff who is the next male reversioner.

(3.) Both the lower Courts have dismissed the suit on different grounds. The trial Court was of opinion that the deed of gift was a gift of the whole property in possession of Manjula, and therefore, must be regarded as a valid surrender by a Hindu widow in favour of the next reversioner living at that time, namely, Goja, and it held on the authorities that the gift can be regarded as a gift to the daughter of the whole property, as an acceleration of her right as reversioner, and a simultaneous gift with the consent of the reversioner, to her husband Dnyanu, and on that basis the transaction was) a valid one, and that therefore Goja's daughter was entitled to the property on her death. The appellate Court has realised the difficulty of that view, because in order that the doctrine of acceleration and simultaneous implied consent may apply, it is necessary that the reversioner herself must give consent) to the gift in favour of a third party. But here Goja was a minor incapable of giving her consent, and she was represented by the very person in whose favour the consent was to be given, viz., her husband, and therefore for this double reason, it was difficult to maintain the position that the transaction was valid on the ground of surrender in favour of the reversioner and consent by the reversioner in favour of an alienation to a stranger. But the appellate Court has confirmed the decision of the trial Court on a different ground, and that ground is that although the son-in-law Dnyanu is joined in the deed of gift and is expressly stated to be a joint donee, still the facts and the circumstances show that the widow Manjula intended to give this property to her daughter Goja alone, and that the son-in-law Dnyanu who was living as ghar javai in the house, was joined only as a formal party with no intention of giving any property to him, and it is on that ground alone that the learned Judge has held this deed to be a valid deed, as a surrender by the widow of her whole interest in the property in favour of her daughter, no interest whatever attaching to the son-in-law. Goja thus became the absolute owner of the whole property, and on her death her daughter became her heir in preference to the plaintiff.