NURBAI Vs. ABHRAM MAHAMAD

JUDGEMENT

(1.) 1. The subject-matter of this litigation is a house at Anand which belonged to one Saban Aliji. He died leaving a widow Jivi and a daughter Nurbai who is the plaintiff. Nurbai was married and had a son defendant No.1. In 1918 Jivi purported to convey the house by a deed of gift to her grandson defendant No.1. She died in 1929. In 1930 defendant No.1 mortgaged the house to defendant No.2, and in 1934 he sold his equity of redemption to defendants Nos. 3 and 4 Defendant No.2 got a decree on his mortgage, and in the execution proceedings plaintiff claimed the house as her property. She was referred to a suit and she sued accordingly for a declaration that she was the owner of the house and that the mortgage and sale by defendant No.1 were not binding on her. The trial Court held that there was a valid gift by Jivi to defendant No.1 and dismissed the suit. There was an appeal to the District Judge which was summarily dismissed.

(2.) THE issues which have been argued in this second appeal are : (1) whether there was a valid gift to defendant No.1, (2) whether, if so, it was effective after the death of Jivi, and (3) whether it is open to the plaintiff to challenge the gift.

(3.) THE gift in the present case is challenged on the ground that there was no delivery of possession and Jivi in no way relinquished her control of it. She was living in the house at the time of the gift with plaintiff and defendant No.1. She continued to live in it till her death, and the alleged gifts as it appears made no practical difference. In 1924 she leased a part of the house to a tenant, and in 1926 she brought a suit to evict the tenant. As there was no actual delivery of possession to the donee, or relinquishment of control by the donor, the question is whether the case conies within any of the exceptions referred to in the passage cited from Macnaghten. Defendant No.1 was a minor aged about ten years at the time of the gift. Bai Jivi was not his guardian for his parents were both alive. THE facts were very similar in the Privy Council case, and yet it was held that there was no valid gift. In the gift-deed plaintiff was mentioned as the boy's guardian, but the gift was to him and not to her. Even if it had been to her it would have made no difference, for in that case the exceptions obviously would not apply and actual delivery of possession was essential. It is true that in the Privy Council case there was no deed of gift. But it cannot be argued that the execution of a deed of gift does away with the necessity for delivery of possession.