DASHRATH Vs. TARACHAND

JUDGEMENT

(1.) THIS is an appeal by the plaintiff-appellant who lost his suit in both the Courts below. His title to sue is based upon a sale-deed, dated 17th August 1924, executed in his favour by Mansaram Bholu and Behari, of whom Mansaram claimed to be a donee of the house in dispute under a deed of gift, dated 25th May 1921, executed in his favour by Mts. Ghisibai and Champabai respectively, the widow and mother of one Nagu Teli, the admitted last male holder. The defendant-respondent is a transferee from one Dr. Hasan Ali, under a deed, dated 22nd July 1924, who in his. turn was a purchaser of the same house from Mt. Ghisibai as per sale-deed dated 28th September 1921. The sole question, as rightly put by the District Judge, is whether the alleged gift is valid or void, because, if the alleged gift of 25th May 1921 be good the sale, dated 28th September 1921 can convey no title whereas if the gift in May is void, the sale in September is valid.

(2.) THE first Court found that Mt. Ghisibai' was incompetent to make a gift of her deceased husband's property and therefore the same was void. It also held that the gift was voidable at Mt. Ghisibai's instance on the ground that it was induced by fraud, but that she did not avoid it, and further that it was not followed by delivery of possession. The result of these findings was that the plaintiff's right to sue was negatived and the claim dismissed. The lower appellate Court upheld the findings as to non-delivery of possession and non-avoidance of the gift, but held that the gift could not be invalid for non-delivery of possession, although it could be treated as valid for want of avoidance by Mt. Ghisibai and that, unless it was found that the donor was incompetent to make the gift, the plaintiff's claim ought to succeed. On this question of Mt. Ghisibai's incompetence to make a gift of her husband's property coming to her by inheritance, the learned District Judge held that the gift is void and could not be ratified by Chunilal, the nest reversioner, by subsequently consenting to it on 16th August 1924. The learned District Judge drew the conclusion that Mt. Ghisibai was therefore free to sell away the house to Hasan Ali in September 1921 as the property remained unaffected by the gift of May 1921 and thus the title of the defendant was upheld and the dismissal of plaintiff's suit maintained.

(3.) A persual of the pleadings shows that Nagu Teli had a lot of other estate and that the same devolved on his death on his widow Mt. Ghsibai as his widow. His mother, Mt. Champabai, had no interest in the property during Mt. Ghisibai's lifetime. The house in suit was thus not the only property comprised in the inheritance but formed a fragment thereof. What proportion it formed of the entire estate there is neither pleading nor proof to show it. Nor is it the case of the plaintiff-appellant that the gifted property forms only a very small portion and that the gift was made in the performance of indispensable acts of duty or religious necessity : cf. Lakshminarayana v. Dasu [1888] 11 Mad. 288. The gift in the present case was challenged as being induced by fraud, but the donor's plea of alleged fraud was not made the subject of a suit by her to set aside the gift or to get the deed declared as null and void and of no effect. According to the District Judge's findings it must therefore stand good on the ground of non-avoidance by suit.