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Judgment
Shelat, C.J.—The facts leading to this reference are as follows: The late Nawab of Palanpur, the father of the present petitioner, died on May 17, 1957. The deceased Nawab was the owner of a palace known as Zorawar Palace. In the year 1954, the deceased Nawab sold this palace to the Government of Bombay for a sum of Rs. 15,00,000. In January, 1955, possession of this palace was handed over to the Government against payment of Rs. 5,00,000 towards the purchase price. The balance of Rs. 10,00,000 remained unpaid and that balance was payable by three annual instalments. There is no dispute that out of these Rs 10,00,000, Rs. 9,00,000 were gifted to the petitioner by the deceased Nawab. The only dispute is about the date when the gift was made, the gift itself not being challenged.
The Deputy Controller held that the amount of Rs. 9,00,000 was deemed to have passed to the petitioner on the death of the deceased Nawab and that u/s 9 of the Estate Duty Act, 1953, as the gift was made within two years of the death of the late Nawab, it was chargeable to estate duty. On appeal before the Central Board of Revenue, it was contended that the gift was governed by Mahomedan law, that section 130 of the Transfer of Property Act was not applicable and that the gift was made two years or more before the death of the late Nawab and, therefore, was not chargeable. Before the Central Board of Revenue, reliance was placed on a letter written to the petitioner by his late father dated May 3, 1955, two draft letters dated May 13, 1955, and an affidavit made on December 23, 1959, by Mr. Thacker, a partner of Messrs. Mulla and Mulla who, in May, 1955, were acting as solicitors for the late Nawab. The draft letter under which instructions were given to the Government of Bombay to pay the sum of Rs. 9,00,000 out of the said unpaid balance of Rs. 10,00,000 directly to the petitioner, was not signed on May 13, 1955, but was signed by the late Nawab on September 19, 1955, and sent to the Chief Minister. In view of the instructions contained in that letter, the amount of Rs. 9,00,000 was in fact paid to the petitioner directly by the Government of Bombay. On these facts, the Central Board of Revenue by its order dated January 27, 1960, held that by reason of section 129 of the Transfer of Property Act providing that the provisions of Chapter VII shall not affect any rule of Mahomedan law and transfers of actionable claims not falling under Chapter VII but under Chapter VIII of the Transfer of Property Act, section 130 of the Transfer of Property Act would be applicable to the case, that the debt being capable of partition, there was no valid transfer of the sum in question even under Mahomedan law prior to September 19, 1955 when that debt was actually partitioned and lastly, that the letter dated May 3, 1955, did not complete the gift and that the gift was completed only on September 19, 1955, when the deceased signed the letter addressed to the Government of Bombay informing that Government of the aforesaid gift to the petitioner. 2. The present reference is made at the instance of the petitioner and the question that is referred to us is :
"Whether on the facts and in the circumstances of the case, the gift of Rs. 9,00,000 should be regarded as having been made within two years of the death of the deceased and liable to estate duty ?"
Three questions would seem to arise in the reference : (1) Whether the gift would be governed purely by Mahomedan law and section 130 of the Transfer of Property Act is inapplicable, or whether it would be governed both by Mahomedan law as also the provisions of section 130 of the Transfer of Property Act ? (2) Whether the letter dated May 3, 1955, effected the gift and, therefore, the gift having been effected more than two years before the death of the donor, the subject-matter of the gift would not be chargeable to duty ? And (3) even if the gift was made on May 3, 1955, whether it is void as it purported to gift a part of an actionable claim of Rs. 10,00,000 ?
Mr. Palkhivala argued that though he had contended before the Central Board of Revenue that the gift would be governed by Mahomedan law and that section 130 of the Transfer of Property Act would not apply, he now felt on further consideration that section 130 of the Transfer of Property Act was applicable, but he stated that he would like at the same time to keep that question open. It is clear that if the gift were held to be governed purely by Mahomedan law, it must satisfy, in order to be a valid gift under that law, three ingredients, namely, (1) a declaration of gift by the donor, (2) its acceptance, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject-matter of the gift by the donor to the donee, such delivery of course being such as the subject-matter of the gift is susceptible of. Mr. Palkhivala contended, as he had done before the Central Board of Revenue, that all these three conditions were fulfilled and that the gift was complete when the letter of May 3, 1955, was written by the late Nawab. The learned Advocate-General, on the other hand, contended that not only section 130 of the Transfer of Property Act applied, but that the gift would also be governed by Mahomedan law and, therefore, the petitioner would have to establish not only that the gift was effected by an instrument in writing, in the present case by the letter dated May 3, 1955, but that it would also have to be established, as required by Mahomedan law which governed the parties, that there was acceptance of the gift by the donee. He argued that the Central Board of Revenue had not given any finding on the question as to acceptance and, therefore, a supplemental statement of the case would have to be called for, such a finding not having been given by the Central Board of Revenue as it had held that section 130 of the Transfer of Property Act and not the Mahomedan law, was applicable.
Section 122 of the Transfer of Property Act defines a "gift" as being 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. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. This definition undoubtedly requires acceptance by the donee or some one on his behalf during the lifetime of the donor and while he is still capable of giving. Section 129 however provides that nothing in Chapter VII, of which section 122 forms part, shall be deemed to affect any rule of Mahomedan law and it is, therefore, clear that Chapter VII has no application to gifts made by a Mahomedan. The learned Advocate-General, however, contended that though Chapter VII of the Transfer of Property Act would not be applicable to such a gift as the one before us, the provisions regarding a gift, even of an actionable claim, would still be governed by Mahomedan law and the acceptance by a donee being one of the essential ingredients to a valid gift, unless such acceptance was established such a gift cannot be upheld. In our view, the contention urged by the learned Advocate-General does not appear to be well-founded. Chapter VIII of the Transfer of Property Act specifically deals with transfers of actionable claims and it would appear that since section 130 deals with a transfer of an actionable claim with or without consideration, the section includes and governs a gift of an actionable claim. Section 130 requires that a transfer of an actionable claim, whether with or without consideration, be effected only by the execution of an instrument in writing signed by the transferor and shall be complete and effectual upon the execution of such instrument and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee whether a notice of the transfer to the debtor is given or not. Section 130 being a specific provision for the transfer of an actionable claim and a gift of such an actionable claim having been included in such transfers by the legislature by including in such transfers without consideration, the provisions of section 130 must prevail and override the provisions of Mahomedan law. Therefore, once the requirements of section 130 are complied with, a transfer of an actionable claim, whether by gift or otherwise, becomes complete and effectual. Under Mahomedan law, it is only if the three conditions, namely, a declaration or gift by the donor, its acceptance and delivery of possession of the subject-matter of the gift by the donor to the donee, are complied with, the gift becomes complete. But section 130 expressly provides that if the transfer of an actionable claim is effected by the execution of an instrument in writing signed by the transferor, such transfer shall become complete and effectual upon the execution of such instrument and once that is done, all the rights and remedies of the transferor become vested in the transferee. The provisions of section 130, therefore, are different from the provisions of Mahomedan law and as pointed out earlier, that section being a specific provision for the transfer of an actionable claim which includes a gift in respect of an actionable claim, must prevail and override the provisions of Mahomedan law. This conclusion is fortified to a certain extent by Tyabji''s Commentary on Muhammadan Law, third edition, page 474, where the learned author states as follows :
"Again section 130 provides that the transfer, whether with or without consideration, of an actionable claim (a life insurance policy being given as an illustration of an actionable claim) shall be complete and effectual upon the execution of such an instrument in writing as is described in section 130. Upon execution of such an instrument the rights and remedies of the transferor vest in the transferee. So that, assuming that the transfer of an insurance policy without consideration would otherwise be considered a gift, the saving clause in section 129 does not introduce the Muslim law of hiba, and section 130 directly provides for the position, and thus prevents the intervention of any other rules of law."
Mr. Palkhivala relied upon Mt. Bibi Alimunnissa Vs. Shaikh Abdul Aziz and Others, . The question there related to a deed of wakf which provided for the payment of a certain sum annually as a stipend to certain relations of the wakif and after them, to their aulad, and it was held that these annuities were actionable claims as defined by section 3 of the Transfer of Property Act and section 130 of the Transfer of Property Act being applicable to Mahomedans also, these annuities could not be transferred by an oral hiba. This decision however would be merely an authority for the proposition that section 130 of the Transfer of Property Act would be applicable to gifts made by Mahomedans but does not lay down that the ingredients under the Mahomedan law are not to be complied with. There is, however, a decision of the Madras High Court in Yacoob Sahib v. Pacha Bibi AIR 1917 Mad. 20, which is relevant to the question before us. That was a suit for a declaration of the plaintiff''s right under an assignment of an insurance policy executed in favour of the plaintiff by the defendant and for delivery of promissory notes issued to the defendant by the insurance company in lieu of premia. The defendant had insured his life with an insurance company for the sum of Rs. 5,500, payable in his 55th year or on death, whichever happened first. On November 13, 1900, he executed an assignment of the policy in favour of the plaintiff, his wife, and got her name registered in the company''s books. A part of the amount was paid to the plaintiff on its becoming due, but on December 12, 1912, the defendant intimated to the company that he had revoked the assignment in plaintiff''s favour. The company having refused to recognise the plaintiff''s title unless she established it in a court of law, the plaintiff filed the suit for a declaration that she was entitled to the money under the policy by virtue of the assignment in her favour. It was there held that the assignment of the insurance policy was valid as a gift under the Mahomedan law even though it was unaccompanied by delivery of the documents. The execution of the deed of assignment, the intimation of the fact to the insurance company and the requisition to register the assignee''s name in the books of the company were sufficient acts of the donor to vest the property in the donee. It was further held that an assignment of a life policy being a transfer of an actionable claim, the deed creating the transfer was complete and effectual for the transfer of the donor''s rights without more. It is true that the court went into the question whether the provisions of Mahomedan law as to gifts had been complied with and did in fact hold that the donor had done all acts necessary under Mahomedan law for a valid transfer and that the gift of the defendant''s rights under the said policy was valid under Mahomedan law. But the High Court, in the penultimate part of the judgment, further held that a transfer even by way of a gift of an actionable claim was not governed by Chapter VII of the Transfer of Property Act which related to gifts and section 129 which saved the rule of Mahomedan law relating to gifts governed by Chapter VII had no application to a transfer by way of gift governed by section 130 which occurred in Chapter VIII of the Act. The learned judges further observed that they were inclined to hold that the claim against the insurance company being an actionable claim, the document in question, exhibit "B", was complete and effectual to transfer all the defendant''s rights in that claim in favour of the plaintiff. This decision, in our view, is a clear authority for the proposition that in the case of transfer of an actionable claim, the provisions of Mahomedan law could not be applicable and once an instrument in writing has been executed creating a gift thereunder, the gift becomes complete and effectual. The position therefore appears to be fairly settled that the provisions of section 130 override Mahomedan law in the case of a gift of an actionable claim and once it is established that the gift has been created by an instrument in writing, the necessity of establishing acceptance by the donee, as required under Mahomedan law, would not arise.
The next question which would arise then for our consideration would be whether the letter of May 3, 1955, itself effects the gift, as contended by Mr. Palkhivala. Before, however, we proceed to examine that letter, we might consider two decisions to which our attention was drawn by Mr. Palkhivala. The first of these two decisions is in Jivraj Joharmal v. Lalchand Shreekison and Co. [1932] 34 Bom LR 837. In that case, one Munda owed a sum of money to Messrs. Gill and Co. who held 212 bales of cotton belonging to Munda as security for the debt. Munda also owed a sum of money to the defendant and to another firm in which the defendant was a partner. An arrangement was arrived at by which the defendant took over the liability of Munda to pay Gill and Co. and the other firm and Gill and Co. agreed to hold the bales to the account of the defendant instead of to the account of Munda. Munda thereafter wrote a letter to the defendant saying that their bales; namely, the aforesaid 212 bales of cotton which were lying with Gill and Co. were got transferred in the name of the defendant and that when these bales were sold, the defendant should credit the amount of the sale proceeds towards the aforesaid amount. The plaintiffs, who claimed a sum of money from Munda, filed a suit against him and obtained attachment before judgment in respect of the said bales of cotton. The defendant took steps to raise the attachment, but the court ordered the plaintiffs to file a suit against the defendant. In the suit, the plaintiffs contended that the transaction by which the defendant claimed the bales was void in view of section 130 of the Transfer of Property Act which required an instrument in writing. That contention was upheld by the trial court, but the appeal court set aside the decree passed by the trial court, holding that the arrangement arrived at between the parties amounted to a novation and that even if the transaction amounted to a transfer of an actionable claim, the letter written by Munda, which stated that 212 bales which were lying with Gill and Co. had been got transferred to his name, was a sufficient transfer in writing to satisfy the requirements of section 130 which did not require the transfer to be in a particular form. Dealing with the finding of the learned trial judge that the document which contained the aforesaid statement did not amount to an instrument in writing within the meaning of section 130 of the Transfer of Property Act, because it merely recorded in writing a transaction which had already taken place, Beaumont C.J. observed that the use of past tense in the letter dated July 24 did not have any significance, for, what section 130 provided was that a transfer not in writing was in effect a nullity. Therefore, if there was, or purported to be, a verbal transfer of an actionable claim made on July 23, and then there was an instrument in writing on the next day which referred to the transfer having been made, the instrument in writing of July 24 must be read as being in law the transfer. He also observed that in point of fact, the intend ed transfer on July 23, not being in writing could only operate as an agree ment for transfer and the document of the 24th referring to the transfer as having been made must be construed as referring to the intention of transfer having been arrived at and that it would be too narrow a construction to be put on that document to say that merely because it was expressed in the past tense, it could not operate as a present transfer within section 130 which did not require the transfer to be in any particular form. The learn ed Advocate-General submitted that in Jivraj''s case (supra), there was an agree ment to transfer an actionable claim followed by the writing, namely, the letter dated July 24, but the record in the present case did not show that before May 3, 1955, there was any agreement to transfer an actionable claim or that such an agreement was thereafter placed on record by the letter of May 3, 1955. The learned Advocate-General, in our view, is right The decision in Jivraj''s case 1 would not be a direct authority which can help the petitioner, except for the proposition that an instrument in writing required by section 130 of the Transfer of Property Act need not be in any particular form and that too narrow a construction of such an instrument (or the purpose of deciding whether it creates a transfer or not, would not be justifiable. But the decision of the Madras High Court in Ramaswami Chettiar v. K.S.M. Manickam Chettiar AIR 1934 Mad. 236 would seem to be of some assistance to the petitioner. In that case, a sum was lying with a banker as a deposit in the name of one A. In a subsequent arrangement between A and B; it was arranged that a portion of the deposit should be transferred to B while the other portion should go to the benefit of A. Subsequently, A sued the banker for the recovery of the money lying in his name as deposit. Though the question there was whether the arrangement changed the nature of the sum as deposit or not the High Court held that the arrangement did not change the nature of the sum as a deposit and the amount still; remained as deposit payable at A''s demand, the High Court, while considering the effect of the arrangement, exhibit "A", observed that the document could be looked at from the point of view of an assignment of an actionable claim within the meaning of section 130 of the Transfer of Property Act, and held that the writing that was contained in exhibit "A" was sufficient to show that the intention of the parties was that one portion of the money lying with the firm of defendant No. 1 should belong "thenceforward" to the son of defendant No. 5 and the other portion should belong to the first plaintiff. The High Court also observed that section 130 did not require that the assignment of an actionable claim should be in any particular form or that there should be consideration for it and that no particular words were necessary to effect transfer of a debt or any beneficial interest in movable property and no particular phraseology was necessary to effect such a transfer if the intention to transfer was clear from the language used. It is thus clear that an instrument in writing u/s 130 need not be, and is not required to be, in any particular form and should not be construed in as strict a manner as a court would do a deed Of conveyance, and as observed in Ramaswamy v. Manickam AIR 1958 Mad. 236, so long as the intention of the donor to give a gift is made manifest in an instrument in writing, it would be sufficient.
As we have pointed out, there is no dispute that the late Nawab at Palanpur desired to make a gift of Rs. 9,00,000 to the petitioner and in pursuance of that desire, he did make the gift and conveyed that fact to the Government of Bombay so that the Government should pay that amount to the petitioner directly. The only and real question is whether he effected; that gift by his letter of May 3, 1955. u/s 130 of the Transfer of Property Act, such a gift has to be effected by an instrument in writing and upon execution of such an instrument, all interests and rights of the donor in the actionable claim become vested in the transferee. In other words, the vesting of rights and interests in actionable claim sought to be gifted in favour of the donee and the corresponding, divesting of those interests and rights in the donor must take place under and by virtue of that instrument. It is possible, as was said by Beaumont C.J. in Jivraj''s case (supra), that a transfer may have taken place before the document was executed, but such a transfer would be a nullity and can only be regarded as a mere agreement to transfer at that stage and it would be the document subsequently executed which would make the transfer complete and effectual and, therefore, it is the instrument which must bring about the transfer. That being so, any other document made subsequent to the document in question would not be relevant except in a case where the instrument in question is ambiguous or susceptible of two possible constructions in which case the court would be entitled to look into the surrounding circumstances, including the conduct of the parties, revealing or throwing light on the intention of such parties.
It must be remembered that the document in question is written by a father to his son and it is quite obvious that it is not written in too careful a way and suffers equally obviously from grammatical errors which add to the difficulty of its construction. Nevertheless, one has to bear in mind that the document is in the nature of a letter written by a father to his son whose intention undisputedly was to make a gift of Rs. 9,00,000 out of the sum of Rs. 10,00,000 which was the balance of the purchase, price remaining unpaid. Mr. Palkhivala''s contention was that the letter creates and brings about the gift, while the contention urged by the learned Advocate-General on behalf of the Revenue was that the letter at best amounts to a mere proposal and an expression of an intention to make the gift in future and stops at that only. As we have already said, the construction of such a personal letter, as is often the case, offers some amount of difficulty and, therefore, the letter has to be read and construed in its entirety. It will be seen that the first part of the letter refers to a promise previously made by the late Nawab to the petitioner that he would pay the whole of the unpaid balance, i.e., Rs. 10,00,000, in such a way that the income thereof would serve as the allowance which was then being paid to the petitioner by his father. This is clear from the following sentences in the letter:
"You must be remembering that when I promised to pay you R$. 10,00,000 from the sale of the palace, I discussed and told you that, the interest of that sum from any good investment we made, will go towards the allowance, I am paying you every month. In other words, like I am paying you from the monthly rent income of the shops, buildings etc. you know after deducting the rent, I pay the remaining sum of your monthly allowance. In the same way I suggested the new interest or such other income from this palace money also."
The sentences following these show that he had thought over the matter afresh and come to two conclusions, namely (1) that instead of retaining the amount and merely paying the income thereof or placing any restrictions on the corpus of the property, considering his age and the worries he would have to undergo for investing the amount in proper investments, he should hand over the corpus without any restrictions or without any condition; and (2) that instead of paying the entire amount of Rs. 10,00,000, he. would retain Rs. 1,00,000 therefrom and hand over Rs. 9,00,000 "without any restrictions or arrangement" so that "you can do what you like with your Rs. 9,00,000 and I have no worry to discuss your investments." This portion of the letter appears to make it clear that when he wrote this letter, the donor had already decided that instead of paying the aforesaid sum to the petitioner with some restrictions or conditions, he should hand over Rs. 9,00,000 without any restrictions or conditions, retaining only Rs. 1,00,000 with him, so that he, the donor, would not have to worry about investing the amount in proper investments. That he had come to these two decisions is clear from what follows, namely, "I think this will be the best thing to do and I will have no interference or worry or bother about it. In the same way you are your own master". From these words, it would be justifiable to conclude that the donor had made up his mind that Rs. 9,00,000 and not Rs. 10,00,000 with some restrictions or conditions, as his original idea appears to be, should be handed over to the petitioner so that the petitioner "can do what you like with your Rs. 9,00,000" and the donor would have no worry of having to think about investing the amount or discuss with the petitioner about such investment. But it seems that haying promised earlier that the entire balance of Rs. 10,00,000 would be available for the petitioner''s benefit and having now decided to retain Rs. 1,00,000 out of it, the donor was at pains to show that the arrangement was not unfair in any way because he was to continue to pay the monthly allowance as before and mentions the fact that the property belonging to the mother of the petitioner, including compensation payable to her for a jagir belonging to her, was already given to him. Having already come to these decisions, the donor then states that in the letter that was to be addressed to the Government of Bombay, he would instruct his solicitors, Messrs. Mulla and Mulla, to mention Rs. 9,00,000 instead of Rs. 10,00,000 which he had originally promised. He also instructs that the petitioner; should likewise inform Mr. Thacker, one of the partners of Messrs. Mulla and Mulla, who was to prepare the draft letter which was to be addressed to the Government of Bombay. The letter of May 3, 1955, was obviously written in haste, as it is stated therein, and further states that had the late Nawab time, he would have touched upon it but he was certain that though written in hurry, the petitioner would understand what was meant by him in this letter, however imperfectly it was written. No doubt, the author of the letter has used the word "if" in that part of the letter which begins with the words "I had been thinking since some time of my avoiding any complication.... it would be less troublesome for me and for you, if I took another lakh from the palace money and gave you Rs. 9,00,000 with no restrictions or arrangement". The use of the word "if" in this portion of the letter might at first sight appear to mean that what was written there, was intended to be a mere proposal or a mere wish, but if the letter were to be examined in its entirety, it would be clear that the writer had given, up the original arrangement he had thought of making and had now, by this letter, decided upon seeing that Rs. 9,00,000 out of the aforesaid sum of Rs. 10,00,000 should be handed over directly to the petitioner. This is clear from what is written in the last part of the letter where he had stated "I think this will be the best thing to do" and further that in consequence of what he had now decided, he would state as follows : "So in that letter of Mulla and Mulla, instead of Rs. 10,00,000 I will put Rs. 9,00,000." We may make it clear that the draft letter referred to above and to be prepared by Messrs. Mulla and Mulla was not a letter for making or recording the gift to the petitioner but was meant to be a notice to the Government of Bombay that the balance of Rs. 10,00,000, now of course Rs. 9,00,000 should be paid to the petitioner directly. This is clear from the two draft letters prepared by Messrs. Mulla and Mulla dated May 13, 1955, and brought on record, coupled with the fact that the finalised draft was in fact signed by the late Nawab on September 19, 1955, and despatched to the Government.
However imperfect the letter might appear to be, read in its entirety and without being astute about its language, it manifests clearly the intention of the donor to gift Rs. 9,00,000 to the petitioner and that intention is Sought to be carried out and effected by the letter.
Assuming that the construction which we are inclined to place upon this letter is not the only possible construction and the letter can also be construed in the way in which the revenue would have us construe, we would be entitled in that event to look into the subsequent conduct of the parties for the purpose of ascertaining the true intention of the donor. In that eventuality, the draft letter dated May 13, 1955, annexure E to the statement of the case, would yield considerable assistance. In paragraph 4 of that draft letter it is stated that:
"I have now made a gift of the sum of Rs. 9,00,000 out of the said Sum of Rs. 10,00,000 to my son Nawabzada Iqbal Mahomed Khan Saleh Mahomed Khan and in order to effectuate that gift may I request and direct Government to pay out of the first annual instalment the sum of Rs. 1,007000 (one lakh) to me and the balance to my son the said Nawabzada Iqbal Mahomed Khan. I also request and direct Government that the subsequent instalments be paid in full to my said son Nawabzada Iqbal Mahomed Khan."
The draft letter was prepared on the instructions of the late Nawab and what is stated there is not only in consonance with the arrangement recorded by him in the letter of May 3, 1955, but in pursuance of that very arrangement. The word "now" used in the aforesaid portion of the draft letter clearly indicates that the gift was already made by him before May 3, 1955, and what is important is that this letter was prepared in consequence of instructions given to the solicitors after the letter of May 3, 1955, was Written. The second draft which is also brought on record and which was., the finalised draft, repeats practically the same thing As mentioned earlier Mr. Thacker of Messrs. Mulla and Mulla made an affidavit while the appeal before the Central Board of Revenue was going on. That affidavit states that in January or February, 1955, the late Nawab had told the deponent that he desired to make a gift of the balance of the purchase price of Zorawar Palace at Palanpur and during April or the beginning of May, the deponent had a discussion with the late Nawab regarding the aforesaid gift which the Nawab wanted to make According to that affidavit, some time in early May, 1955, the deponent was called by the late Nawab at his residence in Bombay and the late Nawab informed him that he had made a gift to his son, Iqbal, of the sum of Rs. 9,00,000 out of the said sum of Rs. 10,00,000. The affidavit further states that the Nawab then asked the deponent to prepare a draft letter to be addressed to the Chief Minister of the State of Bombay regarding the aforesaid gift and requesting him to arrange for the payment of the sum of Rs. 9,00,000 directly to the petitioner. Pursuant to these instructions, the deponent drafted a letter to be addressed by the late Nawab to the Chief Minister regarding the fact of the gift having already been made. It appears from the order passed by the Central Board of Revenue as also the statement of the case that this affidavit was not challenged before the Board and the Board accepted it as correct. The affidavit together with the draft letters would seem to make it clear that the late Nawab had made the gift of Rs. 9,00,000 in favour of the petitioner before the draft letter of May 13, 1955, was prepared and that could only mean that the gift was made under the letter dated May 3, 1955. Thus, if there was any ambiguity or doubt about the construction of the letter of May 3, 1955, such an ambiguity or doubt is dispelled by the fact that if the Nawab had not intended to effect the gift by that letter and if he had thought that the gift was to be made some time in future, he could not have instructed his attorneys that he had already made the gift. He could not have told his attorneys, while giving instructions for the preparation of the said draft letter dated May 13, 1955, that he had already made the gift of Rs. 9,00,000 in favour of the petitioner and that, consequently, they should draft a letter to the Government of Bombay to pay Rs. 1,00,000 to him and the rest, that is Rs. 9,00,000, to the petitioner. In this view of the matter, we are clear in our mind that the construction contended for on behalf of the petitioner, in preference to the one suggested on behalf of the revenue, should be accepted.
As regards the question whether part of an actionable claim can be the subject-matter of such a gift or not, the finding given by the Central Board of Revenue confirming the conclusion of the Deputy Controller on that aspect of the case, is clearly unwarranted. In the first, place, there, is nothing in section 130 of the Transfer of Property Act or in any other provision of that Act which prohibits a transfer or a gift of part of an actionable claim. Secondly, there is ample authority to show that a transfer of a part of an actionable claim is not only not barred under the provisions of the Transfer of Property Act, but is permissible. Since the learned Advocate-General, with his usual fairness, stated that he would not press this aspect of the case and further conceded that there can be a valid transfer of part of an actionable claim, the finding given by the Central Board of Revenue was obviously incorrect and cannot be sustained. In the result and for the reasons aforesaid, our answer to the question is in the negative. The respondent will pay to the petitioner the costs of this reference.