HIRALAL CHIMANLAL Vs. GAVRISHANKAR AMBASHANKAR

JUDGEMENT

(1.) The question in this appeal relates to the validity of the transfer of a house and twelve bighas of land of the deceased Ishvarlal Girdharlal, brother of the plaintiff-appellant, in favour of the defendant-respondent Gavrishankar. Both the lower Courts have upheld the respondent's title on the ground that as the deceased had transferred possession of the property prior to the document Exhibit 26, the latter did not require registration under Section 9 of the Transfer of Property Act, being made not as a deed of gift without consideration, but there being consideration in the shape of services rendered by the respondent to the deceased during his illness.

(2.) For the purposes of this second appeal, we accept the facts as found above by the lower Courts, The deceased was suffering from consumption. During his last illness he was attended upon by the respondent Brahmin and his family. He transferred possession of the house in May 1922 and of the lands early in August 1922. He passed the document, Exhibit 26, which he himself calls a deed of gift, on August 10, 1922, made a will, Exhibit 21, on October 20, 1922, and died on November 11. Under the will he leaves the property to his brother, the plaintiff- appellant, and orders : Brahmin Gavrisbankar Atnbaram of Tham has attended upon and served me very well. Therefore I direct my aforesaid brother Hiralal that he shall make a gift of twenty five bighas of land to the said Gavrishankar when he gets possession of the property.

(3.) The trial in the lower Courts proceeded in the main on the question whether the transfer of title and of ownership was complete before and apart from the document, Exhibit 28, and whether the document did or did not require registration. It is argued for the appellant that the document, Exhibit 26, was a deed of gift under Section 122, and required registration under Section 123, of the Transfer of Property Act. For the respondents it is contended that it was not a transfer without consideration but the consideration consisted of the services rendered by the respondent to the deceased during his illness so as to be good consideration under Section 2, Clause (d), and validates the contract under Section 25 of the Indian Contract Act, and that in any case, under the principle laid down in the Full Bench case of Bapu Apaji V/s. Kashinath Sadoba (1916) I.L.R. 41 Bom. 434, s. c. 19 Bom. L.R. 100, F.B. the respondent, being a person in possession with an agreement, was entitled to resist the claim of the appellant.