JUDGMENT

1. This is a plaintiff's appeal against the judgment and decree dated 19th May 1931 of the learned Subordinate Judge of Bara Banki. It arises out of a declaratory suit. The plaintiff's case was that she was married to defendant 1 on 20th May 1906. The amount of dower fixed at the time of marriage was Rupees 20,000, the whole of which was prompt. A few days before the marriage defen-. dant 1 had agreed to transfer his six pies 7 krant and 2 jau share in village Kheta Sarai to the plaintiff in lieu of dower and in pursuance of this agreement he had on the date of the nikah made a verbal gift of it to the plaintiff. It was further alleged that the plaintiff has been in possession and enjoyment of the said share, ever since that date. She based her cause of action for the suit on a deed of mortgage alleged to have been executed by defendant 1 on 3rd November 1930 in respect of the aforesaid share in favour of defendant 2. She prayed for a declaration to the effect that she was the absolute proprietor of the aforesaid share and that the mortgage deed dated 3rd November 1930 was invalid and ineffectual. It was also prayed in the alternative that if the gift is not proved, a declaration may be made that the plaintiff is in possession of the property in suit in lieu of her dower debt and that the mortgagee, defendant 2, has no right to the said property without payment of the dower debt.

2. Defendant 1 admitted the claim. The suit was contested by defendant 2 on several grounds. He denied that the amount of dower was Rs. 20,000 and also the factum and validity of the gift and delivery of possession. His case was that the plaintiff was never in possession of the property which had all along remained in possession of defendant 1. He also pleaded that defendant 1 was at any rate the ostensible owner anddefendant 2 being a transferee in good faith for valuable consideration was entitled to the protection of Section 41, T.P. Act. The learned Subordinate Judge held that the plaintiff had failed to prove that the amount of dower was fixed at Rs. 20,000. He also held that the story of the oral gift was quite false and that the plaintiff had never been in possession of the property. He was also of opinion that the alleged gift was invalid because there was no bona fide intention on the part of the donor to divest himself of the property and further because it was not evidenced by any registered instrument. Lastly he held that defendant 2 was a bona fide transferee for valuable consideration from an ostensible owner, and was therefore protected against the plaintiff's claim.

3. The learned Counsel for the appellant has not questioned before us the findings of the lower Court about the plaintiff having failed to prove the amount of dower fixed at the marriage or the fact of her having never been in possession of the property in suit nor did he address any arguments against the finding that defendant 2 was a bona fide transferee for value. He confined his arguments to the question of the factum and validity of the alleged gift. (The judgment then discussed evidence and holding that the story of gift was false proceeded.) Next as regards the validity of the gift. It was Lald down by their Lordships of the Judicial Committee in Ranee Khujooroo-nissa v. Mt. Roushun Jehan, (1876) 2 Cal 184 that for the validity of such a gift two conditions are necessary; (1) an actual payment of the consideration on the part of the donee and; (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. Though in the case of a hibabilewaz, delivery of possession at the time of gift was not necessary, yet the fact that the donor has remained in possession of the property for the last 25 years and has been making transfers of it on the footing of his being the owner, shows clearly that there was no bona fide intention on his part to divest himself of the property. The jlearned Subordinate Jud