JUDGMENT

Mukerji, J. - This is the defendant's appeal arising out of a suit for a declaration and injunction instituted under the following circumstances : One Mr. G. J. Hope, who resided before his death at Mirzapur, deposited with the Imperial Bank of India three sums of money as shown at p. 67 of the 'printed paper book. He died on 24th March 1926. About 22 days before his death he executed a will and appointed the respondent and another the executors. The fixed deposits were in the following terms:

Mr. G.J. Hope and Mrs. Clara Hope repayable to either or survivor.

2. On the death of Mr. Hope, his wife withdrew two sums of money, namely, Rs. 7,000 and Rs. 1,000 as they fell due, leaving a fixed deposit of Rs. 5,000 untouched. Mrs. Hope died, approximately, in August 1926. Before her death, she also executed a will and by it left all her property to the defendant appellant.' When the respondent applied for a probate of the will of Mr. Hope, a contest was raised, presumably at the instance of the appellant, that the sum of Rs. 5,000 left in fixed deposit by Mrs. Hope was the property of the defendant. The learned District Judge, by his order dated 4th February 1927, left the matter open and suggested that the question of title should be decided by a separate suit. It was according to that suggestion that the suit out of which this appeal has arisen was brought by one of the executors of the will of Mr. Hope. The plaintiff asked for a declaration that the money in deposit with the Imperial Bank at the testator's death, was the property of the testator and asked for an injunction.

3. The contention of the defendant-appellant was that Mr. Hope had virtually given away the entire money in deposit with the Imperial Bank of India to his wife and therefore the wife was competent to dispose of the same by her own will. Another point was raised, but it was not decided and it was not necessary to decide in these proceedings. We will also not decide the point for the same reason. The point was this. The learned District Judge in granting probate to the plaintiff-respondent remarked that the gift to charity of a portion of the money left by Mr. Hope was void for uncertainty and this money should go to the heir of Mr. Hope as if he died intestate. On the strength of this remark the defendant contended that Mrs. Hope was the heir of Mr. Hope so far as there was an intestacy, that the money in question, namely, Rs. 5,000, or the major portion of it represented such intestacy and that therefore under the will of Mrs. Hope the defendant was entitled to this money. As we have said, we shall not decide anything on this point and if the defendant's contention be correct, it will be for the plaintiff to hand over to her such money as she may be entitled' to.

4. There are only two points that we have to decide in this case. The first is whether there was a gift of the money in deposit in the Imperial Bank of India in favour of Mrs. Hope, and secondly whether the Court below was right in making the defendant pay the entire costs of the suit.

5. The learned Counsel has argued on the strength of English law that where a deposit is made in the joint names of husband and wife, a gift is to be presumed to be in favour of the wife the gift being defeasible on the death of the wife in the lifetime of the husband. He quotes for his authority two statements of law contained in Lord Halsbury's Laws of England, Vol. 15, p. 414, para. 823, and Vol. 16, p. 394, para. 793. He also relies on an English case reported in Dummer v. Pitcher [1833] 2 My & K. 262. We need not consider the English law because that law is not applicable to India at all. The deceased was domiciled in India and was governed by the Indian law. The Transfer of Property Act is the law that would govern this case and Section 123 of that Act will be our guide to determine whether there was a gift of the money in favour of the wife. S 123 says:

For the purpose of making a gift of moveable property the