- (1.) THIS is a second appeal by plaintiff Khub Chand and it arises in the following circumstances:-
(2.) ONE Mst. Savitri Devi filed an interpleader suit against the present appellant Khub Chand and Tulsi Ram, Seduram and Ram Swaroop. It was stated by her that one Mst. Gyarsi widow of Sriram Khumar, resident of Nasirabad, had before her demise deposited with her an amount of Rs. 2,000/- which was to carry interest at the rate of four and a half per cent per annum, that the aforesaid sum together with interest amounted to Rs. 2336/4/6 up to the date of the suit, that all the four defendants were claiming the said amount from her and therefore it was prayed that some person should be authorised to receive the said amount from her and she should be discharged from all liabilities. The present appellant filed his written statement and claimed that Mst. Gyarsi had gifted the said property in his favour and executed a gift-deed dated 6th October, 1948. Ramsaroop defendant claimed the said amount as an adopted son of the deceased. Defendants Seduram and Tulsiram claimed the same amount as reversioners. The plaintiff deposited the amount of Rs. 2336/4/6 in the court and thereafter Khubchand was transposed as plaintiff. On the pleadings of the parties the trial court framed five issues. After recording their evidence and hearing the parties, the trial court came to the conclusion that Tulsiram defendant was entitled to get the said amount as a reversioner who had also obtained the succession certificate Ex. A/3. The gift-deed on which Khubchand plaintiff had based his claim was held to be inadmissible in evidence since it was not registered. It was further held that the delivery of the movable property was not given to him and so his claim was dismissed. Aggrieved by that judgment dated the 27th October, 1955, Khubchand filed an appeal in the court of the District Judge, Ajmer. The learned District Judge upheld the decision of the trial court and dismissed the appeal on the same grounds and it is against this judgment dated the 31st July, 1957 that the present appeal has been directed. The respondent has not cared to appear in this Court in spite of service and so the appeal has been heard ex parte. It is urged by the learned counsel for the appellant that both the courts below have committed an error in holding that the document Ex. 1 on which the appellant had founded his claim was inadmissible in evidence. It has been argued that Mst. Gyarsi was not in direct possession of the amount of Rs. 2336/4/6 and. , therefore, she could not possibly deliver that amount by way of gift to the appellant. According to the learned counsel, what Mst. Gyarsi had transferred to the appellant was an actionable claim, that the actionable claim could be transferred by an instrument in writing signed by the transferor according to sec. 130 of the Transfer of Property Act and that registration of such a document was not necessary. Under the circumstances, both the courts should not have refused to admit the said document in evidence. It is contended that the judgment of both the courts below be set aside, that the record should be sent back to the trial court with direction that Ex. 1 should be admitted in evidence and the case should be decided afresh after giving to the appellant a chance to prove that document according to law.
(3.) I have given due consideration to the argument raised by the learned counsel for the appellant and I think that it carries a good deal of force. It is common ground between the parties that the amount of Rs. 2336/4/6 was in deposit with Mst. Savitri Devi on behalf of Mst. Gyarsi widow of Shri Ram Kumar and what Mst. Gyarsi meant to transfer by means of Ex. 1 was an actionable claim. If the said amount were in, the actual possession of Mst. Gyarsi, then she could not have made a valid gift of that sum in favour of the appellant without following the provisions of sec. 123 of the Transfer of Property Act. According to sec. 123 the transfer of movable property by way of gift may be effected either by a registered instrument signed by or on behalf of the donor or by delivery of the said property. In the present case the money was not handed over to the appellant as it was not in direct possession of the donor. It was, common ground between the parties in both the courts below that the said amount was deposited with Mst. Savitri Devi in order to earn interest just as it could have been deposited in some bank. If Mst. Savitri Devi were to refuse the repayment of the said sum with or without interest to Mst. Gyarsi, the latter could only recover it by filing a claim in the proper court. Under these circumstances, Mst. Gyarsi had only an actionable claim against Mst. Savitri Devi and it was that actionable claim which was sought to be transferred by means of Ex. 1. Sec. 130 of the Transfer of Property Act provides that the transfer of an actionable claim whether with or without consideration can be effected only by execution of an instrument in writing signed by the transferor or his duly authorised agent. This transfer becomes complete and effectual upon the execution of such instrument and thereafter all the rights and remedies of the transferor whether by way of damages or otherwise vest in the transferee even though no notice of the transfer is given. It is not provided in the said section that the instrument whereby the transfer of an actionable claim is made must be compulsory registered. A similar question arose in Maiyan Dalip Rajeshwari Devi Vs. Mohan Bikram Sah alias Ram Raja (l) with regard to fixed deposits in a bank. It was held that "the making of a gift of a fixed deposit in a bank i$ not the making of a gift of movable property but is the gift of an actionable claim. " It was further held that "in such a case it was sec. 130 of the Transfer of Property Act which applied, that the mere handing over of the fixed deposit receipts to a certain person was not enough and it was necessary to have a document in writing signed by the transferor. " I respectfully agree with the view taken in the said case and hold that both the courts below had committed an error in refusing to admit Ex. 1 in evidence. Since it was not admitted by the opposite party Tulsiram if Ex. 1 was executed by Mst. Gyarsi, it seems proper that the case should be sent back to the trial court with direction to allow the appellant to prove that document. The appeal is, therefore, allowed, the judgments and decrees of the courts below are set aside. The case be sent back to the trial court with directions that Ex. 1 should be admitted in evidence and the appellant should be given an opportunity to prove it. The respondent should also be given an opportunity to lead his evidence in rebuttal if he so desires. After recording the evidence of both the parties, the case should be decided afresh. The costs of this Court will abide the result in the trial court. .;