9911796707
TMI Blog1869 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... one which, in my opinion, cannot be governed by the strict principles of English Law, the parties to the transaction being Hindus. I am not convinced that in fact the deceased contemplated deaths or that he intended the gift to be conditional upon his decease, for if the evidence of the plaintiff is believed, his father, on being asked to endorse the Notes, said: As soon as I get a little better, I will sign them; what cause have you for being anxious, seeing I have given them in the presence of so respectable a man as Dr. Baillie, and ' in the presence of my worshipful mother. From this it appears that the deceased manifested some hope of recovery and an intention that the gift should take effect even if he should recover from his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended as a gift inter vivos, end not as a donatio mortis causa, I am of opinion that according to Hindu law, the gift was valid; and that the debt and interest secured by the Government Notes, and not the mere papers, were given. The Statute of Frauds is not applicable to Hindus, and a conveyance may be made verbally without deed and without writing. The distinction which has been made between trusts created by donatio mortis causa and gifts inter vivos that the one is a trust created by operation of law, and the other one to which the Statute of Frauds applies (as to which see Duffield v. Elwes 1 Bligh. N.S. 639 (530) : 1 Sim. and S. 239) is not applicable to cases between Hindus. If the gift were to be governed by the English law and trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentatives after his death, could not at law have compelled the plaintiff to return the Government Papers; and if they could not have compelled the donee to return the Notes, and could not have compelled payment of the Notes without producing them, the effect would be that Government would not have to pay either the donor or the donee, unless some course were open in equity for one party or the other. I doubt whether equity could order the donee to return the Notes. In the case of a bond given as a donatio mortis causa. Lord Hardwieke held that the donee might cancel, burn, or destroy the bond.--Ward v. Turner 1 Wh. and Tu. L. C. 721. If he could cancel a bond, why should he not cancel a Government Note, or even give it to Government, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A bond under English law cannot be assigned so as to give the assignee a right to sue at law, in his own name, but the endorsee of a Bill of Exchange or Promissory Note, according to the Law Merchant in the one case, and the Statute of Anne in the other, may each sue in his own name. Both Bills of Exchange and Promissory Notes may be pledged by delivery as security without endorsement, and such pledge gives an equitable lien on the debt secured by the bills and notes and not merely an equitable right to hold the paper. A transfer by deed and delivery of Government Paper would, in my opinion, in the case of Europeans, constitute the relationship of trustee and cestuique trust even in favour of a Volunteer. In this case, the delivery withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendments proposed. But I am inclined to treat what occurred as amounting to a nuncupative will as to these Government Papers. Raja Apurva Krishna evidently had the matter in his mind for some time, and it appears to me that although he meant to retain the Papers during his own life, he wished to see them actually in the plaintiff's hands before be died. My opinion is, that what Raja Apurva Krishna did was done by him in immediate contemplation of death. The plaintiff says, that some few days previously his father spoke to him about his having made a will. At the time he gave his son the Government Papers, he had been long ill, and was, in fact, in great danger; and Dr. Baillie who was his medical attendant, says, he believes he was awa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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