JUDGMENT Srivastava, J.
1. The dispute in this appeal relates to a shop situated on plot No. 490 of village Datiana is the district of Meerut. One Narottam Dass was the Riyaya in possession of the shop. On the lath July 1932 Narottam Dass executed a deed of gift in respect of the shop in favour of his brotner's grandson Jehangiri Mal. He continued residing in the shop with Jehangiri Mal till his death which took place on the 26th May 1933.
After he died the plaintiff who was the zamindar of the site tiled a suit No. 754 of 1939 for recovery of possession over the shop on the ground that the gift in favour of Jehangiri Mal was not permissible and alter Narottam Dass's death the shop had reverted to him. Jehangiri Mal contested the suit but It was ultimately decreed against him and the zamindar recovered possession over the shop. The suit out of which the present appeal has arisen was the filed in 1944 by Smt. Kirpa Devi, the daughter of Narottam Dass.
She claimed possession over the shop on the allegation that her father Narottam Dass was its owner and she became entitled to it after his death. She said that the previous decree which the zamindar had obtained against Jehangiri Mal was not binding upon her. She impleaded in the suit the zamindar as well as Jehangiri Mal as defendants. The suit was contested mainly by the zamindar who pleaded that Narottam Dass had actually abandoned the shop about 15 years before the suit when he became too old to carry on the grocery business which he used to carry on in the shop.
On account of his old age he had called Jehangiri Mal to live with himself and Jehangiri Mal subsequently persuaded him to execute a deed of gift in his favour. The zamindar further pleaded that the plaintiff had never been in possession of the shop and that her claim was barred by time.
2. The suit was decreed by the trial Court. The defendant zamindar went up in appeal and the learned Civil Judge who heard the appeal allowed it and dismissed the suit. The plaintiff then came up in second appeal and the learned single Judge (Hon'ble Mushtaq Ahmad, J.), allowed the appeal and decreed the suit.
Before him it was urged that the very fact that Narottam Dass had executed a deed of gift in respect of the shop in favour of Jehangiri Mal indicated that he had abandoned the shop; he was a mere licencee in respect of the site and when he abandoned if it reverted to the zamindar and he took rightful possession over it; as Narottam Dass had abandoned it in his own lifetime the plaintiff could not claim any rights in it as his heirs. The learned single Judge rejected this contention and upheld the plaintiff's claim.
3. Permission having been obtained for filing a special appeal this appeal has been filed by the zamindar. The plea that Narottam Dass abandoned the shop fifteen years before the suit, i.e., three years before he gifted it to Jehangiri Mal was not pressed either before the learned single Judge or before us. As Narottam Dass admittedly continued living in the shop till his death that plea has apparently no ehance of success.
The only contention pressed by the learned counsel for the appellant, therefore, was that the execution of the gift deed dated the 12th July 1932 by Narottam Dass amounted in law to an abandonment of the shop by him and as soon as the gift deed was executed the shop along with its site reverted to the zamindar and Narottam Dass lost all his rights in respect of it.
4. The learned single Judge should not therefore have decreed the claim of his daughter in respect of the shop as his heir.
5. We think the contention is without force and the view taken by the learned single Judge is perfectly correct.
6. Abandonment when used with reference to a person having a derivative interest, e.g., a tenant or ryot essentially means the giving up of his right in the property by the person with the intention that he will no longer have any concern with it and that it is to revert to the person to whom it is ultimately to belong. The necessary intention to abandon must therefore be there.
This intention has a positive as well as a negative aspect. The negative aspect implies that the person who abandons will cease to have all connections with the property. The positive aspect of the intention must be that the property is to go back to the person who would be entitled to it in the absence of the person who abandons.
7. If we look at the facts of the present case keeping the above principle in mind, it will be not at all difficult to see that Narottam Dass cannot be held to have abandoned the shop simply because he executed a gift in respect of it in favour of his brother's grandson Jehangiri Mal.
A perusal of the gift deed will show that he clearly mentioned in the deed that Jehangiri Mal was not only closely related to him but had been brought up by him as his own son. It is also an admitted fact that even after executing the deed of gift he never gave up possession over the shop and continued living in it till he died. It is the common case of both the parties that he had called Jehangiri Mal to live with himself before he executed the deed of gift. Thus he never parted with the possession of the shop in favour of Jehangiri Mal or any one else.
In the circumstances it appears to be obvious that he had no intention of severing all his connections with the shop or putting an end to his rights in it. What he actually wanted was that Jehangiri Mal should continue in the shop after him in the same way as he himself had been in possession of the shop.
8. It is also clear that he could have no intention that the shop or its site should revert to the zamindar. Had that been his intention he would have certainly have left possession of the shop and allowed the zamindar to take possession of it soon after the gift was made.
9. Both the positive and the negative aspects of abandonment thus appear to be absent in the present case.
10. Our view on this point receives support from the observations made in the case of Babu Ram v. Mohammad Hasan Khan, AIR 1943 All 241 (A).
11. The learned counsel for the appellants referred to three cases which, according to him, supported his contention that the mere execution of a document of transfer amounted to abandonment. The first case is that of B, Kan-haiya Lal v. Hamid All, AIR 1940 Oudh 164 (B). In that case the occupier of a house in an agricultural village had executed a deed of waqi in favour of a deity and had put the sarbarakars of the deity in possession of the site.
He had even allowed the sarbarakars to build a Thakurdwara on the site. In those circumstances it was held that he must be deemed to have abandoned the site. The features which distinguish that case from the present one are that in that case the ryot had actually parted with the possession of the site and had even allowed other persons to build a Thakurdwara on it. Then he had dedicated the property t" a deity meaning thereby that he was severing all his connections with it.
12. The next case relied upon is Mst. Hali-man Bibi v. Muhammad Tajamul Hussain, AIR 1939 Pat 504 (C). In that case there was a tenant of an agricultural holding who was known as Chanduadar. He had transferred his holding to another person and put him in possession of it. He, however, continued to reside with the permission of the transferee in a room that existed on the holding. The zamindars claimed possession over the holding on the ground that it had been abandoned by this Chanduadax.
The suit was resisted on the ground that as this Chanduadar continued to reside in a room situated on the holding he could not be held to have abandoned the house. This contention was not accepted and abandonment was held to be proved. In that case too it will be seen that this Chanduadar had actually parted with the possession of the holding and put the holding in possession of his transferee.
The result was that the relationship of landlord and tenant which existed between him and the zamindar had come to an end. After having transferred the holding and parting with possession over it if he continued residing in a room situated on the holding with the permission of the transferee that could not make any material difference in his position. That case too is therefore clearly distinguishable.
13. The last case referred to by the learned counsel for the appellants is that of Fateh v. Har Bilas, 1939 Ail LJ 104: (AIR 1939 All 392) (D). In that case a ryot had made a usufructuary mortgage in respect of his house and the zamindar claimed possession over it on the ground that the execution of the mortgage deed amounted to abandonment. The lower appellate Court accepted the zamindar's contention and decreed the suit. In appeal on behalf of the tenant it was urged that as the tenant had not left the village and as he had not sold the house he could not be held to have abandoned it.
The first contention was not acceptable to the learned Judges who were of the opinion that for abandonment it was not necessary for the tenant to leave the village altogether. A tenant, according to them, could abandon his house while still continuing to reside in the village. They also thought that the sale was not only the kind of transfer by which abandonment could be made.
After rejecting both contentions pressed on behalf of the tenant, they affirmed the decree of the trial Court without going into the question how the execution of a usufructuary mortgage bond could by itself amount to the abandonment of the house. It was obviously not argued before the learned Judges that when a person makes only a usufructuary mortgage in respect of his house he cannot by any means be considered to have any intention of extinguishing his rights in the house.
He retains his ownership of the house and the right to take back possession over it at any time after redemption continues to vest in him. If the argument that the mere execution of a usufructuary mortgage bond amounts to abandonment is stretched a step further, it will lead to the startling result that even if a ryot temporarily leaves his house after putting it in charge of a caretaker relation or friend he necessarily abandons it.
14. The learned counsel for the appellants has, therefore, not succeeded in satisfying us that the view taken by the learned single Judge was unjustified or that the mere execution of gift deed by Narottam Dass amounted in law or fact to an abandonment of the shop.
15. The suit of the plaintiffs was, there fore, rightly decreed and the appeal must fail.
It is dismissed with costs.