PANACHAND CHHOTALAL Vs. MANOHARLAL NANDLAL

JUDGEMENT

(1.) The plaintiff, who is the appellant before us, ought this suit as the heir of one Dolat Hirachand to recover three lots of properties. He was resisted by the 1st defendant Goswami Nandlal Vanmalilal, a religious preceptor, who claimed the properties for himself, pleading that lots Nos. 1 and 2 had been given to him by Dolat s widovr Jekore by a deed of gift dated the 12th of October 1891, the gift being for the religious purpose of the installation of an idol, and pleading as regards lot No. 3 that it had been orally given to him by Jekore about a month after the deed of gift.

(2.) The learned Judge below has held against the alleged oral gift, but he has held in favour of the deed of gift of October 1891. At the same time the learned Judge says that the deed of gift refers only to lot No. 1, so that in the learned Judge s view the plaintiff was entitled to lots 2 and 3. There are no cross-objections to the Judge s decree, and the only question, therefore, now before us is whether the deed of gift of October 1691 is good as to lot No. 1. This lot comprises four Municipal Numbers constituting one house. That house is worth over Rs. 4,500, and the total value of the properties left by Dolat would at most be about Rs. 5,600.

(3.) Now it is clear to begin with that the burden of proving the particular gift which is set up by the 1st defendant rests upon him. He has taken certain steps to discharge that burden; but the difficulty which mainly confronts us is that the learned Judge below affords little or no indication of his opinion as to the value of the evidence given upon this question of fact whether or not the gift as alleged by the defendant is proved. The case made upon this point by the defendant is that on the morning of Dolat s death, i.e., the 20th April 1880.Dolat sent for the present 1st defendant and said to him in the presence of witnesses "I give this house in gift to you and if I shall live I shall pass a deed," and so saying he put water on the ground. This is a description of a well-recognised Hindu rite known as Sankalpa and it has by this term been referred to in the proceedings. There were four witnesses called to vouch for this Sankalpa, but with two of them I think we are not closely concerned, namely, with Manor Purbhudas and the 1st defendant, for it is clear that on neither of these two did the learned Judge place any reliance. There remain witnesses Exh. 101 and Exh. 102, Maganlal Laldas and Ramji Bhaichand. It is impossible to say whether the learned Judge below who had these witnesses before him was convinced of the truth of their testimony or not. He does not discuss this evidence of fact, but apparently dazzled; by a distant vision of a point of law merely recites that such witnesses have been called, and then says "it is thus a gift for religious purposes under the direction of her husband." Whether it is a deed of that character or not depends, however on the Judge s view whether the witnesses called in support of it should be believed having regard to all the circumstances-of the case.