Meaning of the form stipulation.

This Second Appeal by the plaintiff is against the concurring judgments of the Courts below. She sued for a declaration against the defendants, of whom the first who was her son had pendente lite died and the others were the Union of India and the Deputy Custodian of Evacuee Property, that a deed of gift executed by her on 4th August, 1943, was not valid but void. There is no dispute that she owned the property which was the subject-matter of the gift. The ground on which she wanted the declaration was that the gift was subject to a stipulation and that she was entitled to revoke it as her son, the donee, failed to fulfil the stipulation. She also asserted that the gift was not completed by delivery. The Courts below found against the plaintiff on both the points. There was a further point in the plaint that, weak as she was in age and mind, she was made to execute the gift in favour of her son. But this was not decided by the lower appellate Court, and on verification it is found that not even a ground was taken on that point in the lower appellate Court. Though, for the appellant here, the point was reiterated, in view of what I have just now said I do not think it necessary to consider this aspect in this appeal. On those findings and on the ground that the suit was not maintainable under section 46 of the Administration of Evacuee Property Act, 1950, the suit was dismissed and the plaintiff’s appeal failed.

On the view I take on the nature of tenor of the gift deed and on the question of delivery of possession and the right of the donor to revoke a gift, it is not necessary to consider the maintainability of the suit under section 46 of the said Act. It is argued for the appellant that the gift contained a stipulation and it was not, therefore, an absolute gift. But it seems to me that what learned Counsel for the appellant styles as a stipulation in that gift deed is no more than desire or expectation on the part of the donor that her son would maintain her. In the gift deed she stated that out of love and affection for him and in the expectation that, as a son he would maintain her, she made gift of the property to him. That, in my view, ‘is, not a stipulation. A stipulation should be a demand as part of the bargain or agreement. Nowhere in the gift deed does it appear that the donee undertook to maintain her. Learned Counsel for the appellant strongly relied on Magulsha v. Mahamed Saheb1, in support of his contention that even a desire of the donor as in this case, can be regarded as a stipulation. In that case, it is true two learned Judges of the Bombay High Court were of the view that a recital that the donee a father had protected the donor and that she gave him the property in full confidence that he would continue to do so, was a stipulation. What the actual terms of the gift deed were in that case do not appear from the report of the judgment. If all that the deed in that case had mentioned was only that the donor would continue to maintain her, I for my part, with due respect to the learned Judges of the Bombay High Court, am not able to concur that it amounts to a stipulation. A stipulation, in my view is something more than an expression by the donor of a confidence of that nature in the donee or a desire or a wish or an expectation that the donee would maintain the donor. A stipulation means according to the Concise Oxford Dictionary, demand as part of bargain or agreement. Even by acceptance of the gift as it seems to me, it cannot be taken that the donee lifted the desire to the position of an undertaking by him to maintain the donor. Learned counsel for the appellant also referred me to Shepherd v. Harrison2. But, I think, this case is of no assistance to him. In my opinion, the Courts below were right in holding that the gift was an absolute one and had no stipulation such as would entitle the donor to revoke the gift.

The second contention for the appellant is that there was no delivery of posses