Report No. 110
32.8. Calcutta case.-
We may here also notice a Calcutta case1. A Hindu, while on his death-bed, caused certain government papers for the sum of Rs. 30,500 to be given to his son in his presence, saying: "Bring out the papers and give them to my son", but he did not make or direct any endorsement thereon. Subsequently, on being asked to endorse them, he said, "I am very weak, how can I sign so many papers:
When I get a tittle strength I will sign them, what cause have you for being " Phear, J. decided that it was a good donatio mortis causa, which had not the same signification in India as in England. The decree was affirmed on appeal. Sir Barnes Peacock, C.J. holding that the gift was not governed by the strict principles of English law, but by the Hindu law. By English law, there was a valid donatio mortis causa, but assuming it to be a gift intevivos, it was a valid gift by Hindu law. Sir Barnes Peacock observed:
"If the gift were to be governed by the English law, and treated as a voluntary gift without condition, and not as a donatio mortis causa, I think the relation of trustee and cestui que trust was created between the donor and the donee". He also observed that the donor, if he had lived, or his representatives after his death, could not, at law, have compelled the done to have returned the government papers.
1. Kumara Llpendra v Nabin Krishna Bose, 3 Beng LROCJ 113 (122, 123), summarised in Bhaskar v. Saraswati Bai, ILR 17 Born 486.
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