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Judgment
Das, J.—The main question which we have to deal with in this appeal is whether there was a verbal gift of the cash balance standing to the credit of Rani Ram Kumari at the time of her death by Raja Ram Narain Singh of Ramgarh in favour of his wife, the plaintiff. The admitted facts are these. On the 22nd of December 1897 Raja Nam Narain Singh, the father of Raja Ram Narain Singh, and the father-in law of the plaintiff, made a grant of certain villages in favour of his wife, Rani Ram Kumari. These villages were subsequently placed in charge of the defendant who happened to be the younger son of Raja Ram Narain Singh. It will be convenient to describe these villages as Ram Kumari villages to distinguish them from the villages which Raja Ram Narain, about the same time, granted to the plaintiff and which were also placed 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.
Before dealing with the evidence in the case, it will be necessary to consider the case which the plaintiff has made in her plaint. Her case is fully set out in the 3rd paragraph of the plaint and is as follows:-"That in the meantime, Rani Ram Kumari died in 1967 Sambat and all the moveable and immovable properties reverted according to law and usage to the Raj; that is to say, the Raja for the time being, the plaintiff''s husband became the malik of the properties left by her and he used to affix his seal and signature on the receipts, etc., for sometime; and he allowed all the properties, collection of rent, arrear and current, collection in cash and kind; the collection papers in short, everything to remain in the defendant''s hand. Sometime after, in 1968 Sambat, the plaintiff''s husband made a gift of all the properties left by the said Rani Ram Kumari, deceased, including the tahvil in cash and kind, the rent arrear and current, due till 1967 Sambat to the plaintiff; he executed a khorposhnama in respect of the mauzahs. From that time the plaintiff became the malik of all the properties including the avings in cash and kind, mentioned above, and all the papers connected with the said properties. The properties belonging to the plaintiff were from before under the management of the defendant and she allowed those properties as well to remain under his management and he acted as manager till Kartik 1970 Sambat, when he had, for some reasons, to be removed from the management of all those properties." The case as made in the plaint certainly suggests that, "the gift of the tahvil in cash and kind, the rent arrear and current due till 1967 Sambat" was made as part of the transaction by which the gift of the villages was made. This case, however, was abandoned at the hearing and it was then suggested that although the gift of the villages was made by a registered document on and bearing date the 17th June 1911, the gift of the cash balance was made orally though made on or about the 17th June 1911. Indeed, the abandonment of the case made in the plaint became inevitable when it was discovered that the registered instrument creating the gift of the villages could not be construed so as to include ''the tahvil in cash and kind the rent arrear and current due till 1967''. The learned Vakil appearing for the defendant protested that, on the pleadings, evidence as to the oral gift was not admissible; but the learned Subordinate Judge overruled the objection and allowed the evidence to be led in regard to the alleged oral gift.
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 the execution of an instrument in writing signed by the transferor or his duly authorised against." See section 130 of the Transfer of Property Act. It is necessary, therefore, to scrutinize the evidence with some care to see whether, on the evidence in the case, the oral gift has been established.
Next, it is admitted that the account books which were kept by the defendant were examined regularly by Raja Ram Narain Singh. The evidence is that Raja Ram Narain had in his possession the seal both of Rani Ram Kumari and of his wife the plaintiff and that the account-books were regularly placed before Raja Ram Narain for his examination. Most of the entries in the account-hooks are in fact seated with the seals'' of the ladies and as the seals were admittedly kept by Raja Ram Narain and as admittedly the account-books were placed regularly before Raja Ram Narain, these entries establish, in my opinion, that Raja Ram Narain accepted the accounts, as kept by the defendant, as correct. That being so, we would expect, if the plaintiff''s case be correct, the cash balance standing to the credit of Rani Ram Kumari at the date of her death, that is to say, the 26th November 1910 to be transferred to the credit of the plaintiff on that date or soon thereafter. But as a matter of fact the cash balance was never transferred to the credit of the plaintiff''s account. The plaintiff challenged the genuineness of the books of account produced by the defendant, but the learned Subordinate Judge has come to the conclusion, and I entirely agree with him, that the books produced by the defendant are genuine and that, to quote the words of the learned Subordinate Judge. "we must take it as a stern fact the deposited cash balance was not entered in the Rani''s rokar after the sal tamami" Now it seems to me incredible that the cash balance whatever it was should not have been transferred to the credit of the plaintiff''s account, if in fact there was a gift of that cash balance in favour of the plaintiff. The defendant was the custodian of such properties as then belonged to the plaintiff. He had regular books of account relating to such properties. Those books of account were regularly checked by Raja Ram Narain, the husband of the plaintiff. The matter could not have been overlooked by Raja Ram Narain and it is impossible to take the view that the defendant successfully 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.
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 wife which, by some reason or other, was not incorporated in the khorposh deed, contemporaneous as it was and that the Rani came into possession of them in due course through the defendant as her manager or agent." It will be necessary for me to examine the other facts and circumstances, but so far as the oral evidence is concerned, all that I need say is that I entirely accept the view of the learned Subordinate Judge on this point.
It is necessary now to consider the "other facts and circumstances" to which the learned Subordinate Judge has referred. These consist of entries in the books of account of Rani Ram Kumari and of the plaintiff respectively which have been produced by the defendant which, according to the learned Subordinate Judge, establish the case of the oral gift. In order to understand the evidence to which the learned Subordinate Judge refers, it is necessary to remember that we are concerned with three distinct periods in the history of the defendant''s management of the Ram Kumari villages. The first period is the period of Rani Ram Kumari which comes to an end with her death which took place on the 10th Aghan 1967 corresponding with the 26th November 1910. The second period has been referred to by the learned Subordinate Judge as the khas period, the period during which the title was with the Raj, that is to say, the period between the 10th Aghan 1967 corresponding with the 26th November 1910 and 5th Ashar 1968 corresponding with the 17th June 1911. The third period is the plaintiff''s period which began on the 17th June 1911. The defendant has produced the rokars. jinsi and nakdi (grain and cash) of the period both of Rani Ram Kumari and of the plaintiff; but he has not produced any account-books of the khas period, his case being that these books were returned to the Raj office and are now to be found in the Raj office. The explanation seems a reasonable one, for there is no reason to think that the books of account belonging to the Raj would remain with the defendant.
Now, the important fact that emerges on a critical examination of the books of account that hare been produced by the defendant is that the cash balance stan ling to the credit of Rani Ram Kumari at the time of her death was in fact not transferred to the plaintiffs rotors. This certainly does not support the case of a gift in favour of the plaintiff especially 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;
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 with the allegation of the plaintiff as with the denial of the defendant, the plaintiff must fail for the simple reason that she must establish the affirmative of the proposition which she asks us to accept. In the first place the case is inherently improbable having regard to the fact that there was admittedly a registered instrument in respect of the villages. No reason has been assigned why Raja Ram Narain should not have made the gift of the cash balance in writing since he had the time and the opportunity to make a gift of the villages by a registered document. In the second place, the account books which have been disclosed by the defendant and which have been accepted by the learned Subordinate Judge as genuine afford no direct proof of the gift as they should have, had the plaintiff''s case been true. There is no reason at all why the cash balance standing to the credit of Rani Ram Kumari should not have been transferred to the account of the plaintiff since the entries were carefully scrutinized by Raja Ram Narain and the defendant must have known that Raja Ram Narain would scrutinize the accounts, In the third place, the oral evidence which has been adduced on behalf of the plaintiff is not such as commended itself to the learned Subordinate Judge. There then remain certain entries in the books of account produced by the defendant, of which those which are relevant are equally consistent with the allegation of the plaintiff as with the denial of the defendant. They do not, in my opinion, lead to inevitable conclusion that there must have been a gift by Raja Ram Narain in favour of the plaintiff In the absence of a written document and direct evidence as to the gift, the entries in the books of account, if they are to be relied upon as proving the case of the plaintiff, must not only be consistent with the plaintiff''s case but must be incapable of explanation on any other hypothesis. In my opinion they are capable of explanation on the hypothesis that there was in fact no gift by Raja Ram Narain in favour of the plaintiff. The question, I am aware, is one of fact; and it is not without strong reason that I would venture to differ on a question of fact from so careful a Judge as Mr. Tulsidas Mukherji. But I consider that I have greater freedom in the matter, since the conclusion reached by the learned Subordinate Judge was not based on his estimate 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.
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 they were accretions to the villages and followed them into the hands of Raja Ram Narain. The plaintiff''s case, as made in the plaint, is that "all the moveable and immovable properties" which belonged to Rani Ram Kumari "reverted according to law and usage to the Raj" So far as usage is concerned the evidence did not satisfy the-learned Subordinate Judge; and I am not prepared to differ from the learned Subordinate Judge on this point. But the learned Subordinate Judge thought that the savings followed the properties from which the savings arose and that accordingly they followed the properties into the hands of the Raj. He relied upon the case of Isri Dutt Koer v. Hansbutti Koerain [1884] 10 Cal. 324; 10 I.A. 150; 13 C.L.R. 418; 4 Sar. 459 (P.C.). That was a case where the Judicial Committee had to consider the question of succession to the savings effected by a Hindu widow out of the estate of which she was in possession as and for a Hindu widow''s estate. Their Lordships came to the conclusion that such savings could not be regarded as the (sic) of a Hindu widow, and that, if she has made no attempt to dispose of them in her lifetime, they follow the estate from which they arose. We are here concerned with an entirely different case. Rani Ram Kumari was in possession of the villages, not as a Hindu widow by right of inheritance, but under a lease granted to her by her husband subject to the payment of rent by her to her husband. In truth she had no estate in the villages, but only a maintenance grant; and the substance of a maintenance grant is that it is the rents, issues and profits that are alienated and not the immovable properties out of which such rents, issues and profits arise which remain the property of the grantor and annexed to his estate. If I am right in my view as to the true nature of a maintenance grant, it is difficult to see how the undisposed of accumulations "follow" the estate, since the title to the estate was never in Rani Ram Kumari, but was always in the grantor. In order that there may be accretion, there must be an estate to which the accumulation may accrete; and as there was no estate which was in the possession of Rani Ram Kumari, I am of opinion that the undisposed of accumulations could not be regarded as having vested in Raja Ram Narain. I hold that Raja Ram Narain was incompetent to make a gift of the undisposed of savings to the plaintiff.
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 as a gift. The evidence then continues that in Assar following (June 1911), Raja Ram Narain said this to the defendant. "The deed has been executedin the name of the Rani in respect of the villages. You do enter the khorponh villages together with the goods left by Rani Ram Kumari and also the collections of the khorposh villages made by you in my time in my wife''s name in the rokar" To this the defendant replied as follows: "The year is going to expire. I will enter all the said properties as directed in the new bahi to be opened soon". The question which we have to decide is whether there was a gift by Raja Ram Narain to the plaintiff as a result of what took place in June 1911 between him and the defendant.
Now in dealing with this question, it is necessary to remember that there is no suggestion that the plaintiff took any part in the conversation or accepted the gift or authorised the defendant to accept it on her behalf. There is no suggestion that she dealt with the subject matter of the gift or at any time gave any order to the defendant to deal with the subject-matter of the gift in any way. The unimpeachable documentary evidence in the case establishes that the defendant throughout acted under the direction and control of Raja Ram Narain and that Raja Ram Narain dealt with the properties just as he liked without any reference to the plaintiff: See Exhibits D3, D4, D5, D6, D8 D24, D27, D28, B6, B20, B23.
Now, under the law in India, in order that a transaction may operate as a gift, there must, first, be a transfer of the property which, in the case of moveable property, may be effected either by a registered instrument or by delivery, and secondly, there must be acceptance by or on behalf of the donee. This is the law as laid down in section 122 and section 123 of the Transfer of Property Act. Was there then a transfer of the property to the plaintiff? It is conceded that the transfer was not effected by a registered instrument, but it is contended that, if the property be in the hands of a third person as undoubtedly it was, a request to such person by the donor to deliver is the only delivery possible, Now I do not think that the proposition in the form in which it was stated by Mr. Dutt is correct. Section 90 of the Contract Act provides that delivery of goods may be made by doing anything which has the effect of putting them in the possession of the buyer, or of any person authorised to hold them on his behalf. u/s 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.
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 books, and gives A''s clerk a notice of the transfer for B. A''s clerk takes the transfer notice to B. and offers to give it him on payment of the price of the oil. B. refuses to pay. There has been no delivery to B. as B. never assented to make C. his agent to hold for him the five tons selected by A." As was pointed out by Jervis C.J., in delivering the judgment in the case from which the illustration is taken "All these cases of delivery of the symbols of property are founded upon that sort of tripartite contract which is adverted to in some of the cases between the vendor, the vendee, and the wharfinger... The defendant got possession of it," that is to say, the paper given by the wharfinger acknowledging the order of the plaintiff who was the seller, "by means of a fraud or an accident or mistake, and not with the intention to adpot Humphray," that is to say, the wharfinger as his agent. ''The wharfinger seems to have acted upon the notion that the order transmitted to him amounted to an absolute transfer of the property. The distinction now pointed out by my brother Byles and Mr. H. James was not adverted to at the trial. The plaintiff never in fact parted with the property at all''. The argument of Mr. Byles to which reference was made in the judgment was that the delivery was not complete until the vendee had accepted the wharfinger as his agent. This was the view which was accepted by the Court. Crowder, J. in the same case said as follows. The plaintiff intended that five tons of the oil which he had at Humphrey''s wharf should be delivered to the defendant, and he gave an order to the wharfinger to transfer that quantity accordingly. Did that bind the goods, and was it equivalent to a delivery to the defendant? The wharfinger, in obedience to the plaintiff''s order, did transfer five tons of the oil to the name of the defendant. Was that transfer operative until the defendant had agreed to accept it? I find no authority to show that a mere delivery of an order to the wharfinger, or any act done thereon by the wharfinger, has the effect of binding the vendee without his acceptance." In this case there is nothing more than an order on the defendant who was in possession of the goods on behalf of Raja Ram Narain to transfer the goods in the name of the plaintiff. There is no evidence that the plaintiff ever assented to make the defendant 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.
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.
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 to make the defendant her agent to accept the gift on her behalf. In my opinion the transaction spoken to by the witnesses examined on behalf of the plaintiff did not operate to vest the savings of Rani Ram Kumari in the plaintiff.
There were two other questions discussed by Mr. Manuk before us, the question of jurisdiction and the question of limitation. The argument as to jurisdiction is based on section 139(7) of the Chota Nagpur Tenancy Act which provides that all suits by landlords and others in receipt of the rent of the land against any agents employed by them in the management of land or the collection of rents of money received or accounts kept by such agents in the course of such employment or for papers in their possession shall be cognizable by the Deputy Commissioner and shall be instituted and tried or heard under the provisions of Chota Nagpur Tenancy Act and shall not be cognizable in any other Court. It was contended that the suit was in substance a suit by a landlord against an agent employed in the management of land or the collection of rents for money received by such agent in the course of such employment. Now, in my opinion, in so far as the plaintiff sought to recover from the defendant an account of the dealings of the defendant with the specific sum of money that stood to the credit of Rani Ram Kumari at the time of her death, the suit was cognizable by the Civil Court of Hazaribagh, for such a suit cannot be said to be a suit by a landlord against an agent for money received by him as such agent. But in so far as the plaintiff sought to re-open the accounts of Rani Ram Kumari in order to show that a much larger sum of money should have been shown to the credit of Rani Ram Kumari at the time of her death, the suit fell within the class of suits mentioned in section 139(7) and was cognizable only by the Revenue Court. For what is the right of the plaintiff to re-open such accounts? Either she Claims in the right of Rani Ram Kumari as the person in whom the right of Rani Ram Kumari to claim an account from her agent is vested or she has no cause of action at all. Her claim is substantially this: Rani Ram Kumari was undoubtedly entitled to claim an account from the defendant of his dealings with the rents, issues and profits that arose out of the Ram Kumari villages; after the death of Ram Kumari that right devolved on Raja Ram Narain, 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.
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 Court for recovery of those specific sums of moneys. This contention is right; and, if the plaintiff had established her case as to the gift, she would clearly be entitled to a decree in respect of such specific sums of moneys as stood to the credit of Rani Ram Kumari at the time of her death. Admittedly there was a sum of Rs. 19,059 6 to the credit of Rani Ram Kumari at the time of her death. Mr. Dutt contends that he is entitled to recover four other sums of moneys which according to him undoubtedly belonged to Rani Ram Kumari and which be says he has been able to trace into the hands of the defendant. The first is an item of Rs. 23,414-9-0 covered by Exhibit 71-1, an entry in the loan book under date the Jeth Badi 10, 1916. The entry shows that the defendant took a loan of Rs. 23,414-9-0 from the money which was in his hands. The entry bears the seal of Hani Ram Kumari. Raja Ram Narain, therefore, had notice of the loan and it may be assumed that the loan was taken by the defendant with the assent of Raja Ram Narain. When the relationship between the parties is remembered, there is no difficulty in understanding the entry. The question is- is the plaintiff entitled to recover this sum of money by virtue of the gift alleged to have been made in her favour by Raja Ram Narain? In my opinion it is impossible to uphold the contention of the plaintiff. It may be that Raja Ram Narain had a claim to recover this sum of money from the defendant; but an actionable claim can not be transferred by word of mouth; it could only be transferred by an instrument in writing signed by the transferor and admittedly the plaintiff does not base her claim on any instrument in writing signed by Raja Ram Narain. The next is an item of Rs. 30,000 which was given to the defendants as "aid for building a house''". Exhibit 31-1 is the entry upon which Mr. Dutt relies. This entry again was inspected by Raja Ram Narain and was sealed by him. We must assume that the aid was in fact given to the defendant and the plaintiff cannot recover this sum of money from the defendant. The next is an item of Rs. 6,000 which was given to the defendant as an "aid." This item does not appear to have been sealed, but the defendant in his evidence states that he took the amount under Raja Ram Narain''s order. The entry is Exhibit 32-1 and it is unlikely that the defendant could have appropriated this sum of money without the knowledge of Raja Ram Narain who, as I hare 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.
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 show that there was a much larger sum of money standing to the credit of Rani Ram kumari at the time of her death, the suit is clearly barred by limitation. It is true that Rani Ram Kumari was entitled to claim an account from the defendant as to his dealings with the rents, issues and profits that arose out of the Ram Kumari villages in the hands of the defendant. The agency came to an end with the death of Rani Ram Kumari which took place on the 26th November 1910. Raja Ram Narain had three years from this death of Rani Ram Kumari to maintain an action for account as against the defendant. The suit was brought more than three years after the date of Rani Ram Kumari''s death and in so far as the suit is a suit for account of the dealings of the defendant with Rani Ram Kumari''s estate is clearly barred by limitation. Mr. Dutt contended that the defendant was an express trustee in respected the funds which belonged to Rani Ram Kumari and which were in his hands. I am unable to agree with this contention.
In the result, I would allow this appeal, set aside the judgment and the decree passed by the Court below and dissmiss the plaintiff''s suit with costs in both the Courts.
Adami, J.
I agree.