Jamuna Prasad Singh vs Mt. Sheorati Kuer and Others

Das, J.—This appeal arises out of a suit instituted by the appellant for a declaration of his title to certain properties specified in the plaint and for confirmation of his possession and for an order restraining the defendant No. 1 from doing certain acts of ownership in relation to those properties. The case of the plaintiff is, that Raghunath, who was the owner of these properties, made a gift of these properties to him by a registered deed of gift, dated the 24th of March, 1905, and that he obtained possession of these properties on the 24th of March, 1905, and that ever since he has been in possession thereof. It is not disputed that a deed of gift was in fact executed by Raghunath on the 24th of March, 1905, but it is contended on behalf of the defendants, who are the respondents before us, that the deed of gift was a colourable transaction and was not acted upon, and that in fact Raghunath, by another document, dated the 26th of April, 1905, purported "to release" these lands in favour of his wife and others. The learned District Judge has come to the conclusion that there was no acceptance of the gift by or on behalf of the plaintiff, and in that view, agreeing with the decision of the Court of first instance, he dismissed the plaintiff''s suit.

The short question before us is, whether the finding of the learned Judge in the Court below to the effect that there was no acceptance of the gift by or on behalf of the plaintiff, can be regarded as a legal finding binding on this Court in second appeal. Mr. Sushil Madhab Mullick strongly contends that the learned Judge, in so far as he placed the onus upon the plaintiff, clearly committed an error of law and that it was not for the plaintiff to prove that there was any acceptance of the gift by or on his behalf. Reliance was placed upon a decision of this Court Muhammad Abdul Nayeem v. Jhonti Mahton (1917) 41 I.C. 389. It was indeed laid down in that case that it was essential to a Hindu gift that there should be acceptance by the donee, but the learned Judge thought that acceptance could be express or implied, and that it should be presumed unless dissent is signified. The learned Judge referred to the view expressed in the 15th volume of the Laws of England, at page 418, which is as follows: "Express acceptance by the donee is not necessary to complete a gift. It has long been settled that the acceptance of a gift by the donee is to be presumed until his dissent is signified even though he is not aware of the gift, and this is equally so, although the gift may be of an onerous nature or of what is called an onerous trust." I have myself some doubt whether this statement of law is equally applicable to cases under Hindu Law. In England it is not necessary that there should be express acceptance by the donee. Under the Hindu Law, as I understand it, express acceptance is necessary for the completion of a gift, and one may refer to the definition of "Gift" in Section 122 of the Transfer of Property Act: "Gift is the transfer of certain existing movable or immovable 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."

In my opinion it is unnecessary to express any final opinion on this point. Let it be assumed that acceptance of a gift by the donee may be presumed until his dissent is signified. But still, upon the whole case, the Court must be satisfied that there was acceptance by the donee, whether express or implied, before the Court can give effect to a deed of gift upon which a party to the suit may rely. The learned Judge in the Court below says that the plaintiff has failed to adduce evidence of acceptance, and if we are to examine the facts in this case it is difficult to come to the conclusion that there was in fact any acceptance by or on behalf of the minor. Mr. Sushil Madhab Mullick has referred to the terms of the deed of release and his argument is that the deed of release completely establishes that there was acceptance of the gift by the father of the donee on behalf of the donee, who was at the time of the gift a minor, and he expressly refers to the following passage in the deed of release: "Whereas on account of some indifference with my wife and others I have before this executed a deed of gift, dated the 24th March, 1905, in favour of Jamuna Prasad, son of Ganesh Narain Singh, inhabitant of Mahuain, Pargana Charkawan, District Gaya, who is my cousin, in respect to the shares, lands and houses aforesaid and got it registered and in that deed of gift certain conditions relating to the performance of personal services and to meeting the expenses of my daughters'' marriages were laid down, and when I demanded from Ganesh Narain Singh the expenses of (my) daughter''s marriage be totally refused to pay it and expressly told me that he would not meet those expenses. Thereupon I told him that as he himself refused to fulfil the conditions of the deed of gift and to pay the expenses, there could be no expectations of future benefit from Jamuna Prasad who was then three years old and was merely an infant, and that, therefore, it would be better that he should return back my original deed of gift. Accordingly, Babu Ganesh Narain Singh has today returned back the said deed of gift in the presence of certain reliable persons on taking from me Rs. 79-9-0 on account of expenses incurred and now the said deed of gift has become invalid and inoperative, and it was not given effect to." The argument is that there is a clear admission in this document that the original deed of gift was made over to Babu Ganesh Narain Singh, the father of Jamuna Prasad, and it was contended before us that the acceptance of the deed of gift operated as an acceptance of the gift. But if we are to examine the alleged admission contained in this document it is necessary for us to examine the whole document in order to see how far the admission helps the case of the plaintiff. It is clear from this document that there were certain conditions in the gift more or less of an onerous nature and that the donor demanded the performance of the obligations with which the gift was burdened, and that Babu Ganesh Narain Singh, on behalf of his minor son, declined to perform those obligations and that thereupon the donor asked Babu Ganesh Narain Singh to return the deed of gift which Babu Ganesh Narain did. Now I quite agree that the acceptance of a deed of gift is prima facie evidence of the acceptance of a gift; but then the whole conduct in connection with the acceptance must be carefully scrutinized for the purpose of the determination of the question whether there was in fact an acceptance of the gift. Now, what are the facts stated in the deed of release. They are, first, that the document was made over to Babu Ganesh Narain Singh; secondly, that the donor called upon Babu Ganesh Narain Singh on behalf of his minor son to perform the obligations with which the gift was burdened; thirdly, that Babu Ganesh Narain Singh (to quote the words of the document) "totally refused to do so"; fourthly the donor thereupon called upon Babu Ganesh Narain Singh to return the deed of gift and Babu Ganesh Narain Singh did so. Now, upon these facts, the question arises whether there was in fact an acceptance of the gift by Babu Ganesh Narain Singh on behalf of the minor. It should be noticed that, acceptance need not be made at once but that it must be made during the life-time of the donor and while he is still capable of giving. I am unable to agree, having regard to the circumstances stated in the deed of release, that the acceptance of the deed of gift operated in this particular case as an acceptance of the gift. A I have stated, the gift was burdened with various obligations and it was necessary for Babu Ganesh Narain Singh, as the father of the donee, to examine the deed before he could possibly come to the conclusion whether the gift should or should not be accepted, and the fact that he returned the deed of gift, in my opinion, establishes that he did not accept the gift on behalf of the minor.

Whenever a question of acceptance is raised, there are two points which ought to be very carefully considered by the Court: first, whether the donee is in possession of the deed of gift; and secondly, whether the donee is in possession of the properties. Admittedly, the deed of gift has been produced by the defendants. It was the case of the plaintiff in the Courts below that he was in possession of this deed of gift and that it was stolen from him by the donor. That case has failed in the Courts below and it has not been persisted in this Court. On the question of possession of the properties, the Courts below have concurrently come to the conclusion that the plaintiff has never been in possession of the properties in dispute.

In my opinion the finding of the learned Judge in the Court below on the question of acceptance is a finding of fact and is binding on us in second appeal. I would dismiss this appeal with costs.

Ross, J.

I agree.