1878 v. GHASIRAM. from the time of his death Taro Bebee, his widow, appears to TARO BEBEE have been the only person left of the family, and residing with and taking care of her husband's great-grandfather. Under these circumstances, it is by no means improbable that Ajoodhya Pershad should have contemplated making a gift in his lifetime to Taro Bebee in order to protect her against any claim that might be put forward after his death by other members of the family. Judgment. AINSLIE, J. The defendant has given some evidence to show that there was an actual transfer of property (which in the main consisted of a banking business) by Ajoodhya in his lifetime. This evidence is, however, open to a good deal of comment, and, in my opinion, ought not to be relied upon; but the fact that the defendant has attempted to prove something more than the truth, and as usually happens in such cases, has given the other side the advantage of being able to comment strongly on the character of the evidence of actual transfer, is not to be taken by itself as proving that the case supported by such evidence is false. There is other evidence in the case, principally the evidence of the conduct of Ajoodhya himself, which is of great weight. We find not only that he took the most public means of declaring his intention of making a gift to Taro Bebee by registering this document, but that there is evidence, some of it derived from witnesses called by the plaintiff, to show that the gift was a notorious fact in his lifetime; and one of the witnesses states, that he was informed of the circumstance by Ajoodhya himself. It is not at all unnatural that he should, up to the time of his death, have continued to manage the banking business, and that he should have carried it on in his own name, although it was his in tention that Taro Bebee should have the profits of it. There are several cases which show that where the donor is guardian of the donee, the Courts will presume that continued possession of the subject of gift by the former is really for the benefit of and in trust for the latter. A case cited from 1 Select Reports, p. 115 (152) -Anundchand Rai vs. Kishen Mohun Bunoja, shows clearly that, as far back as 1805, it was held that, although a father had been proved to have been dealing as owner with property of which he purported to have made a gift, yet it 1878 v. GHASIRAM. Judgment. must be taken that he was holding it all the time for the benefit of his minor son. Therefore, although it is clear on the evidence TARO BEBER that Ajoodhya Pershad continued up to his death to manage the banking business, yet, as there is nothing to show that he was not doing it for his great grandson's widow, it is a fair presumption that he was acting on her behalf. There is very clear evidence of the intention on his part to make over the property to her, and there is not a trace of evidence of intention of any kind before his death to revoke the gift, although upwards of two years elapsed between the date of the deed and his death. It seems to me, therefore, that the finding of the Subordinate Judge, that there was no actual transfer of possession, ought to be set aside, and that we ought to hold that Ajoodhya Pershad was in fact holding from the date of the deed of gift up to the date of his death as trustee for Taro Bebee. Under these circumstances the question, whether a gift unaccompanied by delivery of possession is operative or not, does not arise, and it is unnecessary to discuss the cases cited on behalf of the respondent on that point. The decision of the lower Court will be set aside and the suit dismissed with costs. BROUGHTON, J.:— I am entirely of the same opinion. The position of the parties was such that it seems to me that the old man Ajoodhya Pershad was bound to make some provision for the defendant Taro Bebee, who lived with him during his old age, and who, if he did not make a provision for her, would have been left entirely destitute. It was the most natural thing in the world for Ajoodhya Pershad to provide for her. Of his two great grandsons, Kedarnath died, and Gobordhun for some reason or other left him. In the same way his cousin Ghasiram kept away from him. The only person who remained actually living with the old man, was the widow of Kedarnath, Taro Bebee. So that there was ample motive for the gift, and it seems to me that Ajoodhya Pershad would have behaved excessively harshly towards her if he had left her destitute. Having lived in affluence with him, he knew that unless he made provision for her she would have been left in utter want and AINSLIE, J. BROUGH TON, J. 1878 V. unprotected in the world, and therefore he made an arrangement TARO BEEEE which would obviate that. There is no doubt that he did execute the deed. There is ample evidence to show that; and he registered it, and took the greatest trouble to make it public. The fact of its having been made was known shortly after its execution to the plaintiff himself. GHASIRAM. Judgment. BROUGH- If the transaction is to be avoided, it must be on very strong grounds. It is said that it falls to the ground because Taro Bebee did not take possession of the property. Several cases have been cited in support of this contention, and several texts of Hindoo law, which go to show that a donor cannot resume a gift after the donee has taken possession; that possession must be shown, in order to make a gift valid as against creditors; and also that a gift is itself imperfect until possession of some sort has been taken by the donee. The evidence of the possession and the nature of the possession necessary to support the gift must vary in different cases, and I think that in a case like this, where the gift has not been secret or merely verbal, but open and by a formal deed, very slight evidence of possession suffices to support it, for possession is only evidence of the gift; and it seems to me that the case reported in the Select Reports, referred to by Mr. Justice AINSLIE, shows that the possession of a person like Ajoodhya Pershad, who was in loco parentis as regards Taro Bebee, his donee, was sufficient possession, coupled with the notoriety of the fact of the gift and the registration of the deed, to make the gift perfect. Therefore I agree that the decision of the lower Court should be set aside, and the suit dismissed with all costs. SYED MOHAMED ABOO SYED, AND OTHERS. DEFENDANTS. Res-judicata-Suit for possession-Setting aside sale-Irregularity— Void sale. When a plaintiff sues for possession and determination of right to a certain property, and to set aside an execution sale of a portion of the property on the ground of irregularity, and his suit is dismissed on the merits, a subsequent suit for possession of the property sold, on the ground that the sale was void ab initio, will be barred as resjudicata. Wooma Tara Dehia vs. Unnopoorna Dassee, 11 B. L. R., 158; and Taver vs. Katama Natchiar, 11 Moore's Ind. App., 50, cited and followed. REGULAR LAR APPEAL from a decree passed by the Officiating Judge of Patna. Phillips, for the Appellant. Baboo Rajendro Nath Bose, with him. Mr. R. E. Twidale, and Mr. C. Gregory, for the Respondent. The judgment of the High Court (1) was delivered by BROUGHTON, J.:~ It is not necessary to call upon the respondent in this case. Before I say anything with reference to the case itself, I wish to remark on the way in which the paper-book has been prepared. The case is a somewhat long and complicated one, and the materials have been put together in such a way that it is most difficult to make out where to look for particular documents. There seems to be no order or arrangement at all. The paper-book has cost no doubt a great deal of money, and a good deal of our (1) AINSLIE and BROUGHTON, J.J. No. 205 of 1876. BROUGH TON, J. 1878 THOMAS time has been spent by counsel in looking through it in order to ascertain and point out what we have got to decide upon. A great deal of their money and a great deal of the learned SYED MOHA- Counsel's time and our own would have been saved had the MED ABOO paper-book been prepared with only common care. M. PIGOU v. SYED. Judgment. BROUGHTON, J. The case arises out of some execution proceedings which followed certain very old suits. They were three in number, and the proceedings in execution are numbered 219 of 1862, 141 of 1863, and 62 of 1863. The sum that was due under the decree in the first suit appears to have been Rs. 4,439 odd annas; in the second, Rs. 1,385 odd annas; and in the third, Rs. 5,236. In those execution proceedings certain sale notifications were issued in the year 1863, and certain applications were made by Mr. Pigou against whose property those execution proceedings were directed, in order that he might be enabled to stay execution and find security. The property which was directed to be sold in each of the three suits was, so far as it is material now, identical. He did succeed in obtaining a stay of proceedings in two of the suits, but execution in the third suit went on, and an order was made on the 10th of June 1863 to be found at page 32 of the paper-book directing the property to be sold. It is pointed out by Mr. Phillips that that order refers in fact to all three suits. The order is in these words: "Let it be known to you that, besides the suit No. 219 of 1862, valued at Rs. 4,439-12-2-18, wherein Syed Nazir Ali, mooktear for Mussamut Humeden, is decree-holder, and also the suit No. 141 of 1863, valued at Rs. 1,441-0-9, wherein Narain Dass is decreeholder, are pending decision in this Court." But Mr. Phillips also pointed out that nothing is said there as to the execution of the decrees in the two first suits, namely, Nos. 219 and 141. The only order made on the 10th of June 1863 was that the decree in the case No. 62 of 1863 should be executed. The orders for sale in execution in the other suits had been made some time before, and notifications had been issued, and the day fixed for sale in these suits; those days were prior to the 10th June 1863, but the proceedings alluded to had operated as a stay of those sales. |