TaxTMI 
TaxTMI 
1922 (3) TMI 8
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.... in charge of the defendant. Rani Ram Kumari died on the 26th November 1910 and thereupon the Ram Kumari villages reverted to the Raj of which the title was then vested in Raja Ram Narain. On the 17th June 1911 Raja Ram Narain made a gift of the Ram Kumari villages to the plaintiff and placed them in charge of the defendant. The plaintiff alleges that, on or about the 17th June 1911, Raja Ram Narain made a further gift to her of the cash balance standing to the credit of Rani Ram Kumar at the time of her death, and it is her case that the defendant is bound to render an account to her of his dealings with Ram Kumari villages for the purposes of ascertaining what that cash balance was. The defendant in his written statement denied that any gift of the cash balance was made by Raja Ram Narain in favour of the plaintiff. The learned Subordinate Judge has found in favour of the plaintiff and has directed an account to be taken of the dealings of the defendant with the estate of Rani Ram Kumari for the purpose of ascertaining what the cash balance was at the date of the death of Rani Ram Kumari. 2. Before dealing with the evidence in the case, it will be necessary to consider the case ....
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....e overruled the objection and allowed the evidence to be led in regard to the alleged oral gift. 3. In my opinion the case of the oral gift is inherently improbable. It is admitted that there was a registered instrument in regard to the gift of the villages. It is admitted that the gift of the cash balance was part of the transaction which resulted in the gift of the villages. There is no explanation whatever why the gift of the cash balance should have been made orally when there was no lack of opportunity to make it by the document which brought into existence the gift of the villages, especially when it is remembered that so tar at least as part of the gift is concerned, it could only be effected by an instrument in writing signed by the donor. The alleged gift was of 'the tahvil' in cash and kind, the rent arrear and current, due till 1967 Sambat. It is true that we are not in this suit concerned with the rent arrear and current due; but it is still permissible to enquire whether the rent arrear and current due could be transferred orally to the plaintiff. I have no doubt whatever that they could not; for they were actionable claims and could only be transferred "by th....
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....sfully deceived Raja Ram Naraian who, as the documents show carefully scrutinized the plaintiff's accounts as kept by the defendant. In order to succeed it was absolutely necessary for the plaintiff to establish as was undoubtedly her case, that the cash balance was in fact entered in the plaintiff's rokar and that the genuine rokar has been suppressed. That was her evidence in the Court below, but the learned Sub ordinate Judge found it impossible to rely on that evidence. That being so the case of an oral gift becomes still more improbable. 5. Now an oral gift must be established by satisfactory oral evidence: but the oral evidence adduced on behalf of the plaintiff did not make any impression on the learned Subordinate Judge. In the course of his judgment the learned Subordinate Judge said as follows.-"I would not place the least reliance on the evidence of the plaintiff's witnesses touching the loose conversations which had happened several years ago and which they came to reproduce before me. But other facts and circumstances to which I shall presently refer make it fairly clear to my mind that there was indeed a verbal bequest by the Maharaja in favour of his wif....
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.... when it is remembered that Raja Ram Narain regularly scrutinized the books of account and sealed practically every entry in the books of account with the seal of the plaintiff. The plaintiff's books of account, therefore, do not furnish any direct evidence of gift; but the learned Subordinate Judge has come to the conclusion that there are entries in the books of account which are consistent only with the case of gift and incapable of explanation on any other hypothesis. It will be necessary, then, to deal with these various entries in order to see whether the finding of the learned Subordinate Judge can at all be supported. In dealing with these entries I will follow the order which was adopted by the learned Subordinate Judge; 8. These are the entries upon which the learned Subordinate Judge has come to the conclusion that there must have been a gift of the cash balance standing to the credit of Rani Ram Kumari's account to the plaintiff by Raja Ram Narain. I am wholly unable to agree with the view which has been taken by the learned Subordinate Judge in this case. The onus is upon the plaintiff to establish the oral gift. Where the undoubted evidence is consistent both....
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....timate of the oral evidence. In my opinion, the learned Subordinate Judge took no note whatever of the inherent improbabilities of the plaintiff's case. I have anxiously considered them and also the documentary evidence in the case; and I have come to the conclusion that the plaintiff has failed to establish the case which she made in the plaint. 9. The conclusion reached by me in regard to the question which I have just discussed is sufficient to dispose of the appeal; but as various other questions have been argued before us, I think it necessary to indicate my views in regard to them, especially as the case is likely to travel across the seas. And the first question which arises for consideration is, was Raja Ram Narain competent to make a gift of the undisposed of accumulations of Rani Ram Kumari to the plaintiff? The villages which were granted to Rani Ram Kumari for and by way of maintenance undoubtedly reverted to the Raj on the death of Rani Ram Kumari, and it was undoubtedly within the power of Raja Ram Narain to make a gift of them to the plaintiffs. But the savings effected by her stood on a different footing and would ordinarily vest in her heirs unless it be that ....
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....of savings to the plaintiff. 10. The next question is, assuming that Raja Ram Narain was competent to, and did in fact, make the gift of the undisposed of savings to the plaintiff, did the transaction, as spoken to by the plaintiff's witnesses, operate to pass the title in those savings to the plaintiff. The evidence adduced on behalf of the plaintiff may be summarised as follows. On the forth day after the death of Rani Ram Kumari, Raja Ram Narain informed the defendant that the Rani's khorposh properties reverted to him together with all her goods, cash, grains etc, and asked the defendant to make collection in respect of the resumed Tillages. To this, the defendant assented. Four or five days after the sradha of Rani Ram Kumari, Raja Ram Narain informed the defendant that he intended to give the resumed villages together with all the goods and cash to the plaintiff. To this the defendant replied that the proposal was a proper one and that he would manage the properties both moveable and immovable. Stopping here for a moment, it is quite clear that up to this point of time, there was no gift, for all the authorities are agreed that an intention to give does not operate a....
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....e possession of the buyer, or of any person authorised to hold them on his behalf. Under section 123 of the Transfer of Property Act, the delivery required in the case of gift of moveables is that described in section 90 of the Contract Act. Admittedly nothing was done which had the effect of putting the property in the possession of the plaintiff, but it was contended that them was constructive delivery to the plaintiff in that the defendant consented to hold them on behalf of the plaintiff. 13. There is, in my opinion, an obvious weakness in the argument employed, for there is nothing to show that the defendant was authorised to hold the property on behalf of the plaintiff. Illustration (f) of section 90 of the Indian Contract Act, taken from Godts v. Rose [1855] 17 C.B. 229; 139 E.R. 1058; 25 L.J.C.P. 61; 1 Jur. (N.S.) 1173; 4 W.R. 129; 26 L.T. (O.S.) 240; 104 R.R. 668 will make good my point. That illustration is as follows: "A agrees to sell B five tons of oil at Rs. 1,000 per ton, to be paid for at the time of delivery. A gives to C, a wharfinger, at whose wharf he had 20 tons of the oil, an order to transfer five of them into the name of B. C. makes the transfer in his book....
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....t her agent to hold for her the goods given to her by her husband. In my opinion, the transaction did not operate to transfer the property in the goods to the plaintiff. 14. It was contended by Mr. Dutt that the service of the notice by the plaintiff upon the defendant to make over the account books to her must be taken as her assent to the position occupied by the defendant. But the argument is of no avail, since the notice was served on the defendant after the death of the donor. At the time of the death of the donor the property in the goods was still in him, and nothing that was done by the plaintiff subsequent to the death of the donor could take away the property from his heir and vest it in her. 15. The other prerequisite of a gift is also wanting. The Statute requires that there must be acceptance by or on behalf of the donee and during the lifetime of the donor. It is conceded that there was no acceptance by the plaintiff during the lifetime of Raja Ram Narain, but it was contended that there was acceptance by the defendant and that was the same thing as acceptance by the plaintiff. I am unable to accede to this argument, as there is no proof that the plaintiff assented ....
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....rain, when Raja Ram Narain made a gift of the Ram Kumari villages to her together with the undisposed of savings effected by her and which were in the hands of the defendant, she obtained the right to obtain from the defendant an account of his dealings with the Ram Kumari villages to discover what those undisposed of savings were. Her claim so put is one which is possible to understand; but then that claim being in the right of Ram Kumari is one which was cognizable by the Revenue Court, and by no other Court; for the relationship between Rani Ram Kumari and the defendant was one of landlord and agent, and the savings whatever they were, represented money received by the agent in the management of land and the collection of rents and in the course of such employment as agent. The suit as constituted undoubtedly invited the Court to go into the accounts of Rani Ram Kumari, and, in my opinion, it was not cognizable by the Civil Court of Hazaribagh. 17. It was, however, contended by Mr. Dutt that certain specific sums of moneys undoubtedly stood to the credit of Rani Ram Kumari at the time of her death, and that it was competent to the plaintiff to institute a suit in the Civil Cour....
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....sum of money without the knowledge of Raja Ram Narain who, as I have already mentioned, regularly inspected the books of account. Lastly there is a sum of Rs. 5,729-6-3 which again was given to the defendant as "aid for building a house". The relevant entry is Exhibit 2-1. The entry does not appear to have been sealed, but as I have said before, it is unlikely that he could have taken this sum of money without the assent of Raja Ram Narain. In my opinion if the plaintiff succeeds on the question of the factum and the validity of the gift and if it is established that Raja Ram Narain was competent to make a gift of the undisposed of savings of Rani Ram Kumari to the plaintiff, the plaintiff" would be entitled to a decree as against the defendant for the sum of Rs. 19,(sic)-6-0. 18. Lastly, there is the question of limitation. In my opinion Article 89 of the Limitation Act applies and the plaintiff s suit in so far as it may be considered to be a suit for recovery of such sums of moneys as stood to the credit of Rani Ram Kumari at the time of her death, is not barred by limitation. But so far as the plaintiff invited the Court to re-open the accounts of Rani Ram Kumari in order to s....