BEHARI LALL GHOSE Vs. SINDHUBALA DASSI

JUDGEMENT

(1.) This is an appeal by the defendant in a suit instituted by the respondent for recovery of possession of land upon declaration of title. The land in dispute constituted the occupancy holding of one Nader Chand Ghose who died in 1890. Shortly before his death, he executed on, the 18th March 1890 a deed of gift in favour of his widowed daughter Suchandmukhi Dasi, whereby he professed to transfer the property to her. The document was duly attested and was registered as required by the provisions of the Transfer of Property Act. The donee continued in occupation till her death in 1898, when the present plaintiff, her daughter, came into possession under claim of title by inheritance. In 1910, the defendants forcibly took possession of the land on the allegation that after the death of Nader Chand Ghose the land had passed, to bis widow, and, upon her death, had vested in them as the reversionary heirs (nephews) of the last full owner. On the 29th March 1913, the plaintiff instituted this suit for declaration of her title and for recovery of possession with mesne profits. The defendants denied that the deed was executed by Nader Chand Ghose and Contended that the claim was barred by limitation. The Court of first instance found that the claim was not barred by limitation and that the plaintiff had acquired a valid title to the property as the heiress of her mother, who had obtained the land from her father under the deed of gift already mentioned. An objection was taken before the Trial Court that as the land constituted a nontransferable occupancy holding, the deed of gift was inoperative in law and that consequently the plaintiff had not acquired a valid title. The Court held that this question could be raised only by the landlord or his representative in-interest, and accordingly decreed the suit. Upon appeal the District Judge has confirmed the decree of the Court of first instance. On the present appeal, the defendants have argued that no valid gift could be effected in respect of a non transferable holding, that notwithstanding the execution and registration of the deed of gift, the property continued to form part of the estate of the donor, passing upon his death to his widow, and vesting upon her death in the defendants as the reversionary heirs to the last full owner. The decision of the Fall Bench in the case of Dayamoyi v. Ananda Mohan Soy (1) has been distinguished by the appellants on the ground that the principles enunciated therein are expressly limited in their application to cases of transfer of occupancy holdings for value. On the other hand, the respondents have referred to the decision in Rahimjan Bibi v. Imanjan Bibi (3) which is an authority for the proposition that in circumstances closely analogous to those of the case before us, the question of transferability cannot be raised by the heirs of the donor to the prejudice of the donee or his representative-in-interest. In our opinion, the view taken by the Courts below is well founded on principle and must be upheld.

(2.) The decision of the Full Bench in the case of Dayamoyi v. Ananda Mohan Roy (1) is an authority for the proposition that in oases of transfers for value, the title passes from the transferor to the transferee, although the validity of the transfer is liable to be questioned by the landlord who is not a party to the transaction. Let us consider whether this principle is applicable to oases of gifts of non-transferable occupancy holdings. Section 122 of the Transfer of Property Act defines a gift as the transfer of certain existing moveable or immoveable property, made voluntarily and without consideration by one person, called the donor, to another, called the donee, and accepted by or on-behalf of the donee. Section 123 defines the mode in which the transfer is to be effected; in the case of immoveable 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. Section 126 deals with the question of revocation of gifts. The first paragraph of the Section provides that the donor and the donee may agree that on the happening of any specified event which does not depend on the will of the donor, a gift shall be suspended or revoked; but a gift, which the parties agree shall be revocable wholly or in part at the mere will of the donor, is void wholly or in part as the case may be. The second paragraph lays down that a gift may also be revoked in any of the eases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Then follows the important provision, in the third paragraph, that save as aforesaid, a gift shall not be revoked." This provision is a legislative recognition of a doctrine enunciated more than two centuries ago by Lord Nottingham in the case of Villers v. Beaumont (1682) 1 Vern. 100 : 23 E. R. 342. "If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this Court will not loose the fetters he hath put upon himself, but he must lie down under his own folly; for if you would relieve in such a case, you must consequently establish this proposition, namely, that a man can make no voluntary disposition of his estate, but by his will only, which would be absurd." The position, consequently, is clear, that except in the circumstances mentioned in Section 126 of the Transfer of Property Act, a gift cannot be revoked. The second paragraph of the Section shows that a gift may be revoked as if it were a contract but not on the ground of want or failure of consideration, in other Words, a gift may be revoked, as a contract may be cancelled, on the ground of fraud, mistake, coercion and undue influence, misrepresentation or like reason. No such reason is assigned in the present case. But it is argued that the donor was competent to revoke the gift immediately after execution and registration of the document, on the ground that the property transferred by way of gift constituted a non-transferable occupancy-holding and that such right of revocation has vested in his heir. To test the validity of this argument, we have to consider whether the transaction could have been rescinded if it had been a contract. The Section makes it plain that such rescission was not permissible. The substance of the matter is that although in contracts for sale, mortgage, lease or exchange, there is precuniary consideration, and in a gift there is no such consideration, the right of rescission is circumscribed by the same set of circumstances. Now the decision of the Full Bench in Dayamoyi v. Ananda Mohan Roy (1) shows that this transaction could not have been rescinded if it had been for valuable consideration. The inference follows that it cannot be rescinded merely by reason of want or failure of such consideration.

(3.) Reliance has been placed on behalf of the appellant upon the decision of Milroy v. Lord (4) That case, however, is clearly distinguishable. There the property transferred constituted fifty Bank shares which were transferable only by entry in the books of the company: no such transfer was ever made, but a deed poll was executed. In these circumstances, Turner, L. J., observed as follows:---In order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him." These re marls were followed by Jessel, M. R., in Richards v. Delbridge (1874) 18 Eq. 11 : 43 L. J. Ch. 459 : 22 W. R. 584. where he observed that a man may transfer his property, without valuable consideration, if he does such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal owners ship which vests in the person who by those acts acquires the property. Consequently, to make the principle of Milroy v. Lord (4) applicable here, the appellant would have to establish that the nature of the property transferred in this case was such, that no valid transfer thereof could be effected till the consent of the landlord had been obtained and the name of the transferee registered in his books. But the decision of the Full Bench shows abundantly that in cases of transfer for value, title unquestionably passes from the transferor to the transferee, even though there is no recognition by the landlord in other words, a transfer of this description cannot be impeached by the transferor, though the landlord may possibly refuse to recognise the transfer. In our opinion the principle of the decision in Milroy v. Lord (4) has no application to the circumstances of the present case. Reliance has finally been placed upon the decision in Amulya Ratan Sarhar v. Tarini hath Dey (2) which is an authority for the proposition that the holder of a non trans, ferable occupancy holding is not competent to make a testamentary bequest of such holding. That case is clearly distinguishable, founded as it is on the fact that the bequest was revocable up to the last moment of the life of the testator and that the very moment that the bequest would come into operation, if legal and valid, was the moment when the right of the heir would accrue by operation of law. In the case before us, the gift was not revocable, and was binding as between the donor and the donee. It cannot consequently be maintained that not withstanding the execution and registration of the deed of gift, the property continued to form part of the estate of the donor. The property ceased to be part of the estate of the donor, and there is thus no escape from the position that the heir did not succeed to it by right of inheritance.