JUDGMENT <NAME>, C.J.

1. In this case the plaintiff, as assignee, claims Rs. 2,000, which is alleged to have been due by way of commission to <NAME> who has died since the suit was instituted.

2. The defendant being the owner of certain oil mills was anxious to sell them. They were mortgaged to a Bank for Rs. 35,000, and at the end of May or the beginning of June 1911, the mills were advertised for sale in <ORG>. On the 13th June 1911, the defendant gave <NAME> a letter in the following terms and signed by the defendant, I agree to allow you to sell my above oil mill at Rs. 40,000 only. You will get brokerage 5 per cent, on the same when the mill will be sold through you. This condition to be in force till a fortnight (15 days) from date." Then there were certain words which, it was agreed between the parties, were added at the time that letter was written, in Guzrati, and the correct translation was in these terms, On the sale-proceeds being received in hand, brokerage will be paid."

3. The first question is as to the meaning of the letter. To my mind, the meaning is pretty plain. In order to earn his brokerage <NAME> was to introduce a purchaser who Would be willing to give Rs. 40,000, He had the opportunity of introducing such a purchaser and thus qualifying for his brokerage, for 15 days only. I do not think that the. letter means that the sale had to be completed within 15 days, but it was essential for <NAME>, if he was to earn his commission, that he was to introduce within 15 days a person who would be ready and willing to purchase for Rs. 40,000. In other words, if he did so introduce a purchaser, the mere fact that the purchase was not completed until September would not deprive the broker of his commission.

4. Now, there is no question as to the law which governs such a matter as this. In my judgment, it is correctly stated by Mr. Justice <NAME> at the bottom of page 75 of the paper-book. There he says, quoting from Lord <NAME>'s Laws of England, "In order to entitle the agent to receive hisremuneration, he must have carried out that which he bargained to do, or at any rate must have substantially done so, and all conditions imposed by the contract must have been fulfilled."

5. The main question, therefore, in this case is whether <NAME> substantially carried out what he had bargained to do. This is a question of fact mainly dependent upon the evidence of the witnesses. The case was evidently tried with great care, and the learned Judge reserved his judgment. After due consideration he has accepted the evidence of <NAME>, the purchaser, and rejected that of the defendant : and, in a case such as this, where the matter depends to a large extent upon the verbal evidence of the witnesses, in my judgment, this Court ought not to interfere with the decision of the learned Judge save on very clear grounds; in other words, unless it is clear that a miscarriage of justice has taken place. The Judge who tried the case has had the advantage, which we have not had, of seeing and hearing the witnesses, an advantage which, in my experience, it is almost impossible to overestimate. In this case I am not prepared to say that the learned Judge has decided wrongly; on the contrary, I think there is sufficient evidence to justify the decision at which he arrived. On the material points he has accepted the evidence of <NAME> and rejected that of the defendant; and, in passing, I may say that the comments made upon the evidence of the defendant by the learned Counsel for the plaintiff were not without justification. <NAME>'s evidence was to the effect that it was <NAME> who introduced him to the defendant, and his evidence on one point is very significant; he says he did not want to pay more than Rs. 35,000, but he was persuaded by <NAME> to offer Rs. 40,000, which was the price eventually agreed upon. Some of the passages in his evidence are at pages 36 and 37 of the paper-book, as for instance, where he says in cross-examination.

Q. "Do you say it was Judah who introduced you to Lallji Mahomed?"

A. "Yes, that is true."

Q. "You wanted to pay Rs. 35,000 not 40,000."

A. "Yes, that is true, I first offered Rs. 35,000 and <NAME> used to come and see me often and he got me into this scrape." Then he is asked what is the scrape.

"A. What could I do, I did not. I am telling you the truth, it was <NAME> who introduced me to the defendant; it was <NAME> through whom everything was settled in respect of this matter, and it was <NAME> who got me into this trouble." "The trouble is this: I was made to agree to pay Rs. 40,000 for the mill, it was not worth Rs. 13,000" * * * I did not want to buy it, but <NAME> persuaded me to take it. He introduced me to the defendant, pressed me to take it, and at last got me into this trouble.

6. That being so, the plaintiff's case is proved on one of the material points, namely, that it was through the instrumentality of <NAME> that the purchase price, Rs. 40,000, was obtained. But it is said that there is nothing to show that <NAME> introduced the purchaser and performed his part of the contract within the specified time, 15 days. In my judgment if <NAME>'s evidence is accepted, as it was by the learned Judge, that it was through <NAME> that he was persuaded to offer Rs. 40,000, there is evidence that this must have been done within the time limit, because we find that on the 26th June, 13 days from the date of the broker's letter, <NAME> wrote to the defendant in the following terms: 'As per our conversation with your Mr. <NAME> we intend to purchase the above mills together with the land connected with it at a cost price of Rs. 35,000 on the following condition." Then he set out the condition. The letter closed as "The alternative arrangement for payment is as follows : Rs. 10,000 in cash at the time of sale. Rs. 30,000 to be paid after one year," containing an offer, though it was an alternative offer, of Rs. 40,000 which, he said, he would never have made but for the instrumentality of <NAME>. He must have seen the defendant that day, and such letter contains an offer of Rs. 40,000. It is true that the payment of part was to be deferred for one' year, but that offer was the one which with a slight variation of the terms was eventually accepted in August. Consequently, <NAME>'s evidence having been accepted by the learned Judge, the performance of contract by <NAME> was within the time.

7. I am aware that the letters in the case provide matter of comment on <NAME>'s evidence, as, for instance, the letter of the 25th of June refers to his having seen the advertisement in <ORG>. This is a legitimate comment, but it is not conclusive that <NAME> did not introduce the purchaser. The matter had been advertised and it was quite possible that it was <NAME> who brought the advertisement to the attention of the purchaser in the first instance. Again, the receipt for Rs. 200 where the payment is stated to be "brokerage" is a legitimate subject of comment, but I think the learned Judge's remarks on that transaction are not unreasonable, and, in any event, as between vendor and purchaser, the use of the word brokerage" is quite unsuitable, whatever the nature of the transaction was. The main reason, however, which weighs with me is that the learned Judge has had to deal with conflicting verbal evidence on a question of fact; and after seeing and hearing the witnesses he has come to the conclusion that the truth lies on the side of <NAME> and not on the side of the defendant: and, in such a case, in my judgment, this Court should not interfere, unless it is clear that he has come to a wrong conclusion. This I am not prepared to say.

8. A further point has been raised, namely, that the plaintiff in any event cannot recover more than the commission on the amount actually received by the defendant in cash. In my judgment, this is not correct. The brokerage was to be paid when the sale-proceeds" were received. The purchase was completed on the 27th of September 1911, when the purchaser paid Rs. 10,000 in cash and gave hundis for Rs. 30,000. I agree with the learned Judge that the words in <NAME> added to the letter of the 13th June 1911 do not mean that the commission was only to be payable if and when the whole Rs. 40,000 were received in cash; and, if the defendant chose to agree with the purchaser that the 'sale-proceeds" should be partly cash and partly hundis, I do not think that can affect the plaintiff's right to commission.

9. In my judgment this appeal should fee, dismissed.

<NAME>, <NAME>

10. The plaintiffs as the assignees of one <ORG> sue to recover commission alleged to be due to him under a written agreement dated 13th June 1911 for having effected through his agency the sale of certain oil mills. It must be shown that the conditions of the contract have been complied with. The onus of proving this is on the plaintiffs. This is of importance in the present case, for in regard to the particular question on which I mainly rest my judgment, viz.., whether it has been shown that <ORG> obtained the purchaser within 15 days of and in terms of the agreement, it has been argued by Mr. <NAME> for the respondent that this was not at issue in the lower Court. There is no finding on this particular point. It was, however, not necessary to put this specifically in issue, since the onus of proving all facts necessary to establish the claim was on the plaintiffs and the defendant put in issue the allegation that the purchase was effected by <ORG> in terms of the agreement, according to the conditions of which alone he was entitled to a commission.

11. Several questions arise upon the construction of the agreement. It has been argued for the respondent that it is sufficient if a purchaser was secured within 15 days even if the actual purchase was completed later. This the appellant denies, contending that commission was payable only in the event of the transaction being completed (which it was not) within 15 days : and nextly that brokerage was only payable on the sale-proceeds being received in cash (which was not the case) within this period.

12. The appellant's contention is not without force on both these grounds, but it is not necessary to go into this matter for whatever be the true construction of the document on these points, it is clear and is indeed conceded that whenever or in what way the sale was concluded the purchaser at such sale must have been secured by the broker within 15 days of the agreement. Now the agreement was dated the 13th June 1911 and admittedly the first proved date at which vendor and purchaser were in communication was the 25th June, when 12 days under the agreement had already run by. It must be shown then that within the remaining 3 days <NAME> found the purchaser. Has this been shown? In cross-examination the purchaser was asked whether his letter of the 25th June was written before or after his introduction to the defendant and whether <NAME> asked him to write to the defendant or not. He was again asked about this matter in re-examination and he replied that he did not remember the date nor even the month when <NAME> spoke to him about this letter and that he could not say whether it was before or after this letter that <NAME> spoke to him. Had it been the fact that it was due to <NAME>'s intervention that the first letter was written, it does not seem to me possible that the witness could have forgotten it. His answer must have been in that case that he must have seen <NAME> first, for before seeing him he had known nothing of the defendant or of his property. He will not commit himself to this and, I think, for the reason that he had not then seen <NAME> but had learnt about the property through an advertisement in the <ORG>. This is indicated by the words in the letter of the 25th, "I see in the Exchange <ORG> that you are going to sell." The purchaser also in his evidence says, "I saw the Exchange <ORG> and then I wrote that letter," not that he had seen <NAME> meanwhile or at all. Though the omission of <NAME>'s name from the letter may not be conclusive, it is certainly evidence against the plaintiffs for a reference to the broker, through whom it is suggested that the purchaser came to know of the property, might have been expected. There is no specific evidence that <NAME> secured the purchaser between the 26th and 28th or the conclusion of the period allowed to him. There is some general evidence that he introduced the purchaser, which in any case is scarcely accurate if the first communication of the 25th to which I have referred was without his intervention. The evidence, however, is not such as I can accept. Doubtless, in a case of this kind great weight must be attached to the judgement of the learned Judge who heard the case; but, in the present instance, we have no finding on the specific point and the uncorroborated evidence of the purchaser on which the learned Judge has relied is, upon the most favourable view, consistent with the fact of work done after the limited period and is, in my opinion, in conflict with and unsupported by the documentary evidence in the case and the inferences to be derived there from. As stated the first letter of the 25th indicates that it was the advertisement which first put the parties in communication. There is no mention of <NAME> as broker in any of the letters until we get to the letter of 15th November 1911, which is of doubtful admissibility against the appellant. But on the merits the letter comes too late to be of value and is open to the suspicion that evidence was then being made for the claim by <NAME>, which followed it in January.

13. It is remarkable also that there is no letter or other document by the broker which establishes his claim. Had he earned his commission in terms of the agreement, I think he would have been careful to put it on record. The Solicitor Mr. <NAME>, who acted in the sale as attorney for the vendor, states that he never heard that <NAME> was the broker in the transaction. The purchaser also in his evidence says he never mentioned the matter to any one. Finally, there is evidence that the purchaser <ORG> took a commission of 1/2 per cent, on the entire sale-proceeds of Its. 40,000 on the ground that there had been no broker in the sale. He further granted a receipt for the same, on which express reference is made to "amount of brokerage." The purchaser knows some English and though asked to give an explanation of this circumstance was unable to do so. Mr. Justice <NAME> has held that this was a rebate, an explanation which the witness himself has not ventured to give. But, assuming that it was, the point is that it was allowed because no broker had been employed. If so, then this directly contradicts the purchaser witness when he says that <NAME> was to his knowledge the broker. Nor is it likely that the defendant would have agreed to make a further payment for '"brokerage" if he was already indebted for considerable brokerage to <NAME>. For these reasons, I would allow this appeal. It is possible that what may have happened is that the defendant advertised his property and then <NAME> coming in this way to know of it got the agreement of agency from the defendant. After that, and independently of <NAME>, the purchaser learnt from the <ORG> that the property was for sale and entered into communication with the vendor. <NAME>, who may have heard of this, may, sometime between June and August (for it is to be observed that the sale was not concluded till the latter date), have pressed the purchaser to buy in the hopes of putting forward a claim for commission. But this would not be sufficient. It is, however, not necessary for me to hold anything more than that the plaintiffs have not established that <NAME> earned his commission within the terms of the agreement and I would, therefore, decree this appeal with costs and dismiss this suit with costs, As regards the question whether we should interfere in appeal with questions of fact, I will only say this, that if after argument the Court has a conviction that the judgment under appeal is erroneous it should not be affirmed, and this is not the less so because the judgment raised a question of fact. The mode in which the conviction is brought about in matters of law and fact is a question into which I do not enter, it being sufficient in the present case to say that, in my opinion, the appellant has shown us circumstances under which the judgment under appeal should be reversed.

<NAME>, J.

14. This is an appeal, by the defendant in an action by an agent against his principal for recovery of commission. The defendant employed the plaintiff to sell his oil mill; the agreement was made on the 13th June 1911 and was embodied in a letter in the following terms: I agree to allow you to sell my above oil mill at Rs. 40,000 only; you will get brokerage 5 per cent, on the same, when the mill will be sold through you; this condition in force till fortnight (15 days) from this date." There was a postscript to the effect that on the sale-proceeds being received in hand brokerage will be paid." On the 25th June 1911 one Bhatuknath Boodhnath wrote to the defendant: ' I see in <ORG> that you (are) going to sell your oil mill at Narikeldanga. I went thrice to your office, but unfortunately could not find you there. I shall, however, call at your oil mill tomorrow, with an expert engineer's opinion, and will give you offer for the same. I may buy for myself or sell to my friends." On the next day, the intending purchaser again wrote to the defendant. The letter referred to a conversation which the writer had with the defendant and contained two alternative offers. The first alternative was the purchase of the mill for Its. 35,000 cash, Rs. 1,000 to be deposited there out as earnest money, and the balance to be paid after one month, if on trial working meanwhile, the mill turned out to be satisfactory. The second alternative was the purchase of the mill on payment of Rs. 10,000 in cash at the time of sale, and Rs. 30,000 to be paid after one year. It may be observed parenthetically that neither of these offers accorded with what the seller expected, namely, Rs. 40,000 in cash. What followed, does not transpire from the correspondence, but we find that on the 8th August 1911 the purchaser wrote to the defendant and confirmed an arrangement made on the day previous for the sale of the mill for Rs. 40,000; Rs. 10,000 to be paid in cash on registration of the conveyance, Rs. 20,000 by a hundi payable one year after that date, and the balance of Rs. 10,000 by another hundi payable 18 months after the date of the registration of the conveyance. On the 15th November 1911, nearly two months after the sale had been completed on the 27th September, the purchaser is said to have written a letter to the plaintiff and authorised him to negotiate for the appointment of managing agents of the mill, which is described as purchased through you." On the 26th January 1912, the Solicitors of the plaintiff wrote to the defendant and demanded immediate payment of Rs. 2,000 as brokerage due or the sale of the mill, which was alleged to have been effected through their client. The Solicitor of the defendant promptly replied on the next day. He pointed out that the letter of authority of the 13th June 1911 was limited to 15 days from the date thereof. He asserted that the plaintiff had failed to secure a purchaser within the prescribed time and that the mill had been sold without any concern with him; and he added that the seller had already paid brokerage on the transaction. This referred to a payment of Rs. 200 by the defendant to the purchaser, who had granted a receipt therefor as paid on account of brokerage. The plaintiff thereupon instituted this suit on the 13th June 1912. The defendant asserted that the sale had taken place without the intervention of the plaintiff as broker and repudiated the claim as entirely unfounded. Mr. Justice <NAME> has held on the evidence that the sale was effected through the instrumentality of the plaintiff and has decreed the suit. On the present appeal, the defendant has contended that this finding is not supported by the evidence on the record, and that even if the finding is maintained it is not sufficient to justify the decree.

15. It is an elementary principle that where an agent has been appointed for a fixed term, the expiration of the term puts an end to the agency, whether the purpose of the agency has been accomplished or not; consequently, where an agency for sale has expired by express limitation, a subsequent execution thereof is invalid, unless the term has been extended. It is thus plain that the plaintiff could be entitled to the commission, only if he found a purchaser on or before the 28th June 1911. I do not hold that the plaintiff was bound to complete the transaction within this period; in my view of the contract, the plaintiff would be entitled to the commission, if, within the time prescribed he produced a person able, ready and willing to enter into the transaction with the defendant on the terms prescribed by the latter, and the plaintiff must within that period notify his principal that he had secured such a person. It is also indisputable, I think, that the burden lies upon the plaintiff to establish that he has earned the commission he claims. If these principles are borne in mind, there is no escape from the conclusion that the plaintiff cannot be awarded a decree, merely on the finding that the sale was effected through his instrumentality. If the case were before a Jury, the Court would have to instruct them that to find a verdict for plaintiff, they must find that plaintiff procured a purchaser able and willing to buy on the terms stated in the writing, that he notified defendant of the fact and that this was done within the 15 days prescribed. The vital question, consequently, is, did the plaintiff bring the purchaser to the defendant on or before the 28th June 1911. There is no trace in the correspondence already summarised that he had done so. The first letter of the purchaser to the defendant mentions that he had learnt from <ORG> about the proposed sale of the mill. This, no doubt, is not conclusive proof that he had not met the broker on or before the 25th June; but there is no specific evidence upon which I can act that the two had met before that date. The letter of the 26th June also, taken by itself, does not assist the plaintiff. No doubt, it recites a conversation between the defendant and the purchaser, but it does not show that the plaintiff was present at that interview. I do not overlook that the purchaser asserts that he was introduced to the defendant by the broker, and his version has been accepted as true by Mr. Justice <NAME>; but this does not carry matters far enough. The purchaser could not pledge his oath that his first letter was written after the broker had informed him of the proposed sale of the mill. I am not unmindful that the purchaser asserts that he first offered Rs. 35,000 and that the broker <NAME> used to come and see him often and got him into the scrape, that is, induced him to pay Rs. 40,000. This statement, even if accepted and taken along with the letter of the 26th June, does not conclusively prove that <NAME> introduced the purchaser to the defendant on or before the 26th. There can be no dispute that if such introduction did not take place on or before the 26th June, the evidence does not show that it was brought about either on the 27th or 28th June; indeed, the evidence is entirely silent with regard to these two dates.

16. Mr. <NAME>, in the course of his able argument for the respondent, properly emphasised the fact that Mr. Justice <NAME>, who had the opportunity to see the witnesses, which we have not, has believed the purchaser in preference to the defendant; and he has argued that in a case of this description, where there is a conflict of oral testimony, <ORG> should not reverse the finding of <ORG>. This contention raises a question of considerable importance as to the duty and functions of <ORG> in this country. As was stated by <NAME>, <NAME> in <NAME> v. Empress 11 C.L.R. 25 and by <NAME>, <NAME>, in <CITATION> 23 C. 347, the sound rule to apply in trying an appeal in a civil case is that the <ORG> must be convinced, before reversing a finding of fact by a lower <ORG>, that the finding is wrong; in other words, the burden lies upon the appellant to satisfy the <ORG> that the finding he assails is not supported by the evidence on the record: Wise v. <NAME> 20 E.B. 68 : 11 M.T.A. 177 at p. 181 : 7 W.R. 13 (P.C.) : 1 <NAME>. P.C.<NAME> 667 : 2 Sar. P.C.<NAME> 249 : Tahboonissa Bibee v. <NAME> 15 W.R. 228 : <NAME> v. <NAME> 25 W.R. 30 : <NAME> v. <NAME> 25 W.R. 26 : <NAME> v. <NAME> 25 W.R. 50; <NAME> v. <NAME> 25 W.R. 363. : Musammat Hoymobutty Dossee v. <NAME> 14 W.R. 58 : Munsoob Bibee v. Ali Miah 17 W.R. 358. When such evidence consists entirely or even principally of the oral testimony of witnesses, the appellant is at a special disadvantage. Reference may in this connection be made to the observation of Lord <NAME> in <CITATION> 3 Ind. Cas. 799 : 36 I.A. 185 : 32 M. 400 : 11 Bom. L.R. 1206 (P.C) : 10 C.L.<NAME> 276 : 6 M.L.T. 304: "No doubt it is always difficult for Judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have; but that difficulty is greatly aggravated where the Judge who heard them has formed the opinion, not only that their inferences are unsound on the balance of probability against their story, but that they are not witnesses of truth." The reasons for this rule of practice are too obvious to require elucidation. But it is worthy of note that Lord <NAME> refers with approval to the judgment delivered by <NAME>, M.R., in <ORG> in the case of <NAME> v. <NAME> (1898)1 Ch. 704 : 67 L.<NAME>Ch. 402 : 78 L.T. 540, which sets out the limitations of the rule: Even where, * * * the appeal turns on a question of fact, <ORG> has to bear in mind that its duty is to rehear the case, and the <ORG> must reconsider the materials before the Judge with such other materials as it may have decided to admit. The <ORG> must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the <ORG> comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the <ORG> is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the' relative credibility of witnesses from written depositions; and, when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, <ORG> always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not: and these circumstances may warrant the <ORG> in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the <ORG> has not seen. " In the case in which these observations were made, <ORG> (<NAME>, M.R., Rigby, L.<NAME>, and <NAME>, L.<NAME>), allowed the appeal, although the appeal turned on a question of fact. It is obviously impossible to frame a formula, to define the impression which must be produced on the minds of the Judges of <ORG>, so that they may not shrink, in the words of <NAME>, M.R., from overruling the judgment of the Trial <ORG> : and the cases in the books employ various expressions which are really of little assistance, such as that the judgment is 'clearly wrong' [Khoorshedjee Manikjee v. <NAME> 1 M.I.A. 431 at p. 442 : 5 W.R. 57 (P.C) : 1 <NAME>. P.C.<NAME> 73 : 1 Sar. P. C.<NAME> 138 : 18 E.R. 173], that the decision is irresistibly erroneous' [<NAME> v. <NAME> (1876) 2 H.L.Sc. 53 followed in Pandurang Vasudeo v. <NAME> 5 Bom. L.R. 956 and <CITATION> 9 Bom. L.R. 393,], that '<ORG> ought never to reverse the judgment of an inferior <ORG> unless quite confident that the judgment giver, in the <ORG> below is wrong' [<NAME> (<NAME>) v. <NAME> (1853) 3 Cl. & F. 479 at p. 512 : 9 Bligh. (N.S.) 532 : 6 E.R. 1517 followed in Yemunabai v. <NAME> 5 Bom. L.R. 584], that the <ORG> will not reverse the decision except in cases of extreme and overwhelming pressure [The Julia, Bland v. <NAME> (1860) 14 Bom. P.C. 210 : Lush. 224 : 15 E.R. 284 : 134 R.R. 43, The Alice and the Princess Alice (1868) 2 P.C. 245 : 19 L.T. 678 : 17 W.R. 209 : 38 L.<NAME> Adm. 5], that '<ORG> will hesitate long before it disturbs the findings of a Trial Judge based on verbal testimony' [Khoo Sit Hoh v. <NAME> (1912) App. Cas. 323 : 81 L.<NAME>P.C. 176 : 106 L.T. 470], or that the finding 'is so clearly against the weight of the testimony as to amount to a manifest defeat of justice' : [<ORG> v. <NAME> as <NAME> (1899) 2 I.R. 1 at p. 18 : 32 I.L.T.R. 33 : 4 Ir.L. Rep. 630]. We may also bear in mind the observation of Lord Chelmsford in Tayammaul v. Sashachalla Naikar 10 M.I.A. 429 at p. 436 : 2 Sar. P.C.<NAME> 139 : 19 E.R. 1034, "the advantage the Judge of <ORG> possesses in forming a correct opinion of the credit due to the witnesses, does not relieve <ORG> from the duty of examining the whole evidence and forming for itself an opinion upon the whole case." To the same effect are the observations of <NAME>, <NAME> A., in Glannibanta, The (1876) 1 P.D. 283 at p. 287 : 34 L.T. 934 : 24 W.R. 1033 : 3 Asp. M.C. 339. Indeed, if the conclusion of the Trial <ORG> in a case of conflict of oral testimony were held practically unassailable, that <ORG> would in essence be constituted the final <ORG> on questions of fact. But the parties to the cause are entitled, as well on questions of fact as on questions of law, to demand the decision of <ORG>, though, as James L.<NAME>, said in Bigsby v. <NAME> (1876) 4 Ch. D. 24 at p. 29 : 35 L.T. 679 : 25 W.R. 89 : 46 L.<NAME>Ch. 280, if we are to accept as final the decision of the <ORG> of first instance in every case where there is a conflict of evidence, our labours would be very much lightered." The matter is obviously simpler where the conclusion is merely an inference of fact [Lord <NAME> in Smith v. <NAME> (1884) 9 App. Cas. 187 at p. 194 : 53 L.<NAME>Ch. 873 : 50 L.T. 697 : 32 W.R. 687 : 58 <NAME>P. 644.] or where the evidence whereon the decision of the Trial Judge is based, has been taken on commission [Lord <NAME> in <NAME> v. <NAME> 6 Ind. Cas. 981 : 14 C.W.N. 842 : 12 Bom. L.R. 419 : 7 M.L.T. 414 (P.C.) : 32 A. 241]. But, even in other cases, it is undoubtedly the duty of <ORG> to weigh conflicting evidence and to draw its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. Cases are by no means rare where an Indian Appellate <ORG> has reversed the decision of <ORG> based on conflicting oral testimony and the conclusion of the Appellate <ORG> has been ultimately affirmed by <ORG> : <CITATION> 25 I.A. 109 : 25 C. 824 : 2 C.W.N. 321 : <CITATION> 33 C. 537 : 3 C.L.<NAME> 349 : 10 C.W.N. 522 : 8 Bom. L.R. 375 : 1 M.L.T. 131 : 16 M.L.<NAME> 161 : Musammat Bulli Kunwar v. Mnsammat Bhagirathi 9 C.W.N. 649 : 15 M.L.<NAME> 265 : <CITATION> 22 C. 519 : 22 I.A. 12 : Secretary of State for <CITATION> 4 Ind. Cas. 448 : 36 C. 967 : 10 C.L.<NAME> 281 (P.C) : 11 Bom. L.R. 1197 : 14 C.W.N. 134. : Jeolal Mahton v. <NAME> 15 Ind. Cas. 184 : 16 C.W.N. 466 (decided by <ORG> on the 23rd January 1912). I am not unmindful that there are other instances where <ORG> has reversed the decision of the local Appellate <ORG> and restored the decree of the Trial Judge, but that has been done because their Lordships were satisfied, upon a scrutiny of the entire evidence, that the view of the latter was more consistent therewith than that of the former, <NAME> v. Rajani Kant Mukerji 21 C. 1 : <CITATION> 23 C. 1 : 22 I.A. 171 : <CITATION> 27 C. 521 : 27 I.A. 10 : 4 C.W.N. 501 : Khoo Sit Hoh v. Lim Thean Tone (1912) App. Cas. 323 : 81 L.<NAME>P.C. 176 : 106 L.T. 470 : <CITATION> . 130 : 29 A. 29 : 17 M.L.<NAME> 32 : 5 C.L.<NAME> 4 : 9 Bom. L.R. 80 : 1 M.L.T. 429 (P.C). We may also bear in mind the fact that, although as an ordinary rule <ORG> does not interfere with concurrent judgments of the <ORG>s below on questions of fact, instances are by no means rare where their Lordships have examined the whole evidence, formed for themselves an opinion on the entire case and reversed the unanimous decision of the two <ORG>s in India on a question of fact: <NAME> v. <NAME> 4 M.I.A. 1 : 7 W.R. 57 (P.C.) : 1 <NAME>. P.C.<NAME> 197 : 1 Sar. P.C.<NAME> 313 : 18 E.R. 600 : Huradhun Mookurjia v. Muthoranath Mookurjia 4 M.I.A. 414 : 7 W.R. 71 (P.C.) : 1 <NAME>. P.C.<NAME> 213 : 1 Sar. P.C.<NAME> 375 : 18 E.R. 758; Mndhoo Soodun Sundial v. <NAME> 4 M.I.A. 431 : 7 W.R. 73 (P.C) : 1 <NAME>. P.C.<NAME> 216 : 1 Sar.P.C.<NAME> 378 : 18 E.R. 764 : Tayammaul v. Sashachalla Naikar 10 M.I.A. 429 at p. 436 : 2 Sar. P.C.<NAME> 139 : 19 E.R. 1034 : Charles Seton Guthrie v. <NAME> 14 M.I.A. 53 : 15 W.R. (P.C.) 50 : 7 B.L.R. 630 : 2 <NAME>. P.C.<NAME> 429 : 2 Sar. P.C.<NAME> 660 : 20 E.R. 706 : Baboo Lekraj Roy v. <NAME> 14 M.I.A. 393 : 17 W.R. 117 : 10 B.L.R. 35 : 2 <NAME>. P.C.<NAME> 536 : 3 Sar. P.C.<NAME> 43 : 20 E.R. 833 : Hay v. Gorden (1872) I.A. Sup. 106 : 10 B.L.R. 301 : 18 W.R. 480 : Venkatesivara lyan v. Shekhari Vanna 8 I.A. 143 : 3 M. 384 : Muhammad Mumtaz Ahmad v. <NAME> Jan 16 I.A. 205 : 11 A. 460 : 5 Sar. P.C.<NAME> 433. : <CITATION> 11 Ind. Cas. 399 : 15 C.W.N. 648 (P.C) : 13 C.L.<NAME> 588 : 8 A.L.<NAME> 587 : 13 Bom. L.R. 440 : 21 M.L.<NAME> 652 : 10 M.L.T. 335 : (1911) I.M.W.N. 418 It is not necessary for the present purpose to consider whether any general principle is deducible from the expressions used by their Lordships as to the circumstances under which they will depart from the rule ordinarily observed by them, such as 'that the very clearest proof is shown that the decision is erroneous, that 'the <ORG> is clearly satisfied that there has been miscarriage in the appreciation of evidence,' that it is manifestly clear from the probabilities that the <ORG> below was wrong,' that 'the case is very extraordinary,' that a strong case must be made out before the <ORG> would recommend reversal,' that 'it must very clearly appear that the conclusion is very plainly erroneous,' that 'there has been some miscarriage in respect of a presumption to which too much weight was given,' that very definite and explicit grounds must be assigned for interference,' that there is so strong a preponderance of testimony that the <ORG> can confidently pronounce the decision to be wrong,' and other expressions of like import. But it is obvious that if reversal of concurrent findings of fact is permissible, the <ORG> of first Appeal should not be deemed fettered to a larger extent.

17. In the present case, as I have already stated, the finding that the sale was effected through the instrumentality of the plaintiff does not justify a decree in his favour. The purchaser does not make an explicit statement that the plaintiff introduced him to the defendant on or before the 28th June 1911, but even if this much be deemed to be implied in his statements, I cannot accept his testimony. The correspondence does not show any trace of the presence of <NAME> in the negotiations; one would have expected some mention of his name in the first or the second letter. It is also remarkable that no written communication appears to have passed between the plaintiff and the defendant, although the plaintiff had taken the precaution to accept the agency by a written instrument. There is further the unexplained fact that the purchaser received Rs. 200 as brokerage; he cannot explain why the sum was described by this obviously inappropriate term; it is extremely improbable that the defendant would have made a present of this sum to the purchaser, if he had really to pay Rs. 2,000 to plaintiff as broker. There is the further significant fact that the claim for brokerage was not put forward till the 26th January 1912, though, if the plaintiff is to be believed, he had earned it before the 26th June 1911 and the sale had been actually completed on the 27th September 1911. Finally, the case for the plaintiff is certainly not improved by the letter alleged to have been written on the 15th November 1911, which plainly bears the appearance of an attempt to create evidence for future use. After the most careful and anxious consideration of the entire evidence on the record and the circumstances of the case, I have arrived at the conclusion that the plaintiff has failed to establish that he has earned the commission claimed in terms of the contract and that the decree in his favour cannot be supported. In my opinion, the appeal should be allowed and the suit dismissed with costs throughout.

<NAME>, <NAME>

18. The result is that, in view of the opinion expressed by the majority of the <ORG>, this appeal will be allowed, the judgment of the <ORG> of first instance set aside, and the plaintiff's suit dismissed with costs both of the <ORG> of first instance and of this appeal.


JUDGMENT <NAME>, J.

1. The claimants have filed the present appeal for enhancement of compensation awarded by <ORG>, Karnal dated 8.9.1987 vide which a compensation of Rs. 15,000/- was awarded to the claimants under Section 92-A of the Motor Vehicles Act on account of death of <NAME> and her minor daughter <NAME>.

2. Briefly the facts of the case are that on 25.2.1987 at about 7.00 P.M. <NAME> along with her infant girl child <NAME> who were sitting on the carrier of a cycle, which was being driven by her son <NAME> and was going from Chhajpur Khurd to village Chhajpur Kalan. The cycle was being driven by <NAME> on the correct side and when they reached the Chhajpur crossing, <NAME> slowed down his cycle and gave a signal with his right hand indicating that he was to turn towards Chhajpur Kalan which was on the right hand side. At that time, a Haryana Roadways Bus, bearing registration No. HRQ-4452 which was coming from the Panipat side i.e. the same side on which the cycle was going and being driven by <NAME>, respondent No. 4 rashly and negligently, struck against the cycle as a result of which <NAME> and her infant daughter <NAME> died on the spot. <NAME> who was riding the cycle suffered injuries.

3. The claimants who are the husband of <NAME> as well as 5 other minor children, have filed the claim petition wherein they have claimed compensation for the deaths of <NAME> as well as <NAME> to the tune of Rs. 3,50,000/-. It was averred in the petition that <NAME> was earning a sum of Rs. 1500/- per month by doing the work of tailoring and stitching.

4. Reply to the claim petition was filed by the respondents, in which it was admitted that the accident took place. However, <NAME>, the driver of the Haryana Roadways Bus averred that the accident has took place due to negligence of the cyclist and he was not responsible for the accident. Thus the question in the present case is whether. <NAME> and <NAME> had died in an accident with Bus No. HRQ-4452 due to rash and negligent driving of bus driver, <NAME>, and if so then how much amount of compensation, the claimants are entitled to ?

5. The claimants in order to support their case, examined PW-1 <NAME>, PW-2 <NAME> and PW-3 <NAME>. PW-2 <NAME> stated that at about 7.00 P.M. on 25.2.1987, while he was coming from his fields, he had halted at Chhajpur Khurd bus stand to take water and to relax, that in the meanwhile <NAME> cyclist was seen coming from the side of village Nimbri. He has further stated that <NAME> and infant child <NAME> were sitting on the carrier of the cycle and <NAME> Singh was going on the left side of the road. It was further stated by this witness that <NAME> turned to the right hand side after giving a signal by hand and while he had reached the middle of the road, a Haryana Roadways bus, bearing registration No. HRQ-4452 which was coming from village Nimbri and was being driven in rash and negligent manner, struck against the cycle and as a result of which <NAME> and her daughter were died on the spot. <NAME>, who was riding the cycle, also appeared as PW-3 and stated that he had given a signal with his right hand for turning to the right hand side and at that time, the offending vehicle was at a distance of 100 yards. It is further submitted that the bus came straight and struck against the cycle as a result of which, his mother and infant sister died. Both the witnesses were cross-examined at length by the counsel for the <ORG> and the respondents have tried to make much capital with regard to the time of the accident. RW-1 <NAME>, who is the driver of the Haryana Roadways bus also appeared in the witness box and stated that it was the cyclist, who was at fault as the cyclist took a sudden turn towards the right hand side without giving any signal. One RW-2 <NAME> stated that he was sitting in the front seat of the bus and said that the accident had taken place due to negligence riding of the cyclist and not the bus driver and thus the bus driver is not responsible.

6. After going through the evidence on record, it is clear that when <NAME> who was riding the cycle, he had given a signal, at that time the bus was approximately 100 yards away. There was sufficient time for the bus driver to slow down and apply brakes as the distance of 100 yards is good enough to take a evasive action. Moreover, the bus had struck against the cycle from the rear portion, which shows that it is the bus driver who is responsible for the accident.

7. Even assuming that the bus was at high speed at 80/100 k.m. per hour still 100 yards is sufficiently long distance to stop the bus and to take evasive action in case any cyclist or pedestrian is crossing the road even without giving signal. In the present case, the cyclist had given a signal before turning and the headlights of the bus were on and it was 100 yards away. Therefore, in these circumstances, it is held that the accident took place because of the rash and negligent driving of <NAME>, driver of the bus.

8. The next question that arises in the present case is as to what amount of compensation the claimants are entitled to. It has come in the evidence of <NAME> husband of deceased <NAME> that the deceased used to do the work of tailoring and stitching. He has stated that she used to earn a sum of Rs. 50/- to 60/- per day i.e. Rs. 1,500/- per month. However, in the statement of <NAME>, her income is mentioned as Rs. 700/-. Apart from the statement of <NAME>, there is also a statement of <NAME> had stated that his wife had got suits stitched from the deceased and she used to earn approximately Rs. 15/16 per kurta/piece. It can easily be assumed that the deceased earned a sum of Rs. 900/-. If one third is deducted towards the expenses then the total dependency of the claimants was Rs. 600/- per month which comes to Rs. 7200/- per annum. <NAME> was 35 years of age at the time of her death. She had five minor children and therefore, in these circumstances, I am inclined to apply a multiplier of 15. Accordingly, claimants are entitled to compensation of Rs. 1,08,000/- on account of death of <NAME>.

9. As far as the death of the minor child <NAME> is concerned, it would be appropriate to award a lump sum amount of Rs. 75,000/-. The entire amount of compensation shall be apportioned in equal shares between all the claimants. The claimants shall also be entitled to interest at the rate of seven and a half per cent instead of 12 percent, as awarded by the <ORG>. <CITATION> . (2005-2)140 P.L.R. 650 (S.C.). The Hon'ble Supreme Court of India has held that taking note of the prevailing rate of interest in bank deposits, the interest is liable to be fixed at the rate of seven and a half per cent per annum.

10. The entire amount shall be paid by the respondents after deducting the amount already paid. The claimants shall be entitled to the interest from the date of filing of the claim petition, till realisation. The judgment of the M.A.C.T., Karnal is modified to the extent above


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND ORS. DATE OF JUDGMENT17/07/1974 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> SARKARIA, RANJIT SINGH CITATION: 1974 AIR 1728 1975 SCR (1) 534 1974 SCC (2) 323 CITATOR INFO : RF 1986 SC1370 (69,77,80) RF 1988 SC 782 (65) RF 1988 SC1353 (3) ACT: Transfer of Property Act , 1882  ss. 6 , 122 and 123- -Gift of shares in companies by registered gift deed--Transfers not effected before donor's death--No question of competing equities--Whether rights of ownership can be split into right to corpus and usufruct. Indian Companies Act , 1913--S. 28--Reg. 18 of Table A "title to get on the register" and "the full property in the shares in a company"--Distinction. Interpretation--Harmonious interpretation. HEADNOTE: By a registered deed, a donor gifted to the appellant shares in various limited companies. Before her death the donor had signed several blank transfer forms to enable the done to obtain transfer of the shares in the register of companies and share certificates in his name. She had signed at the correct places showing that she meant to sign transfer of shares but the transfer could not be effected before the donor's death. The respondent claiming the shares filed an administration suit. A single Judge of <ORG> held that the appellant was entitled to shares covered by the gift deed to which blank transfer forms could be related. A division bench of <ORG> reversed the decision of the Single Judge on the ground that the gift was incomplete for failure to comply with the formalities prescribed by the Indian Companies Act , 1913 for transfer of shares. It further held that there was no equity in favour of the appellant so that he may claim the right to complete what was left incomplete by the donor in her life-time. On appeal it was contended in this Court (1) that since the donor had signed the blank transfer forms and handed them over to the done, the gift deed and the signed blank forms had to be read together and (2) that the transfer was complete with the registration of the gift deed and even delivery of share certificates to the done was not necessary in view of s. 122 of the Transfer of Property Act. Allowing the appeal, HELD:(1) The respondent has not made out a case for defeating the clearly expressed intentions of the donor, coupled with the authority with which the donor was armed by reason of the signed blank transfer forms. On a correct interpretation of the gift deed and other material the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question of competing.equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. [549B-D] The fact that the relevant provisions of the Transfer of Property Act and the Companies Act must be interpreted harmoniously does not mean that a provision of one Act could be nullified by any provision of the other Act. It means that the provision of the two Acts should be read consistently with each other so far as it is reasonably possible to do so. This end can be best achieved by examining the objects and the subject-matter of each enactment and by viewing each relevant provision as a limb of an integrated whole meant to serve the underlying purposes. In this way their separable spheres of operation will be clarified so as to avoid possibilities of conflict between them or any unnecessary overflow of what really appertains to one field into another. [539H-540B] (2) The Transfer of Property Act is an enactment meant for defining certain basic types of transfers and lays down the requirement both of substance and of form for their legal recognition and effectiveness. Section 5 of the Act gives a wide connotation to "transfer of property". Section 6 of the Act lays down that "property of any kind may be transferred" subject to certain exceptions. Shares in a company are certainly a form of property. Section 28 of the Companies 535 Act, 1913 says that they "shall be movable property, transferable in the manner provided by articles of the Company". A wide definition of "property" in s. 6 of the Transfer of Property Act includes not merely shares as transferable, movable property. but would cover as a separate form of property a right to obtain shares which may be antecedent to the accrual of rights of a shareholder upon the grant of a share certificate in accordance with the articles of association of a company. [540B-E] There is a distinction between "the title to get on the register" and "the full property in the shares in a company". The first is acquired by mere delivery, with the required intention of the share certificate and a blank form signed by the transfer. The second is only obtained when the transferee, in exercise of his right to become a shareholder, gets his name on the register in place of the transferor. This antecedent right in the person to whom the share certificate is given with a signed blank transfer form under a transaction meant to confer right or title upon him to become a shareholder is enforceable so long as no obstacle to it is shown to exist in any of the articles of association of a company or a person with a superior right or title, legal or equitable, does not appear to be there. Section 6 of the T.P. Act justifies such a splitting up of rights constituting property in shares just as it is well recognised that rights of ownership of property may be split up into a right to the "Corpus" and another to the "usufruct" of the property and then separately dealt with. [541C- <CITATION> . 53 Indian Appeals P. 92 @ 97-98, relied on. Section 122 of the Transfer of Property Act defines a "gift". Section 123 of the T. P. Act prescribes the mode of transfer by gift. No special mode of delivery is specified in the section. On the other hand it is indicated that the delivery "may be made in such a way as the goods sold are delivered". [541E-G] In the instant case the registered document was signed both by the donor and donee and is attested by witnesses. The donor specified and gave particulars of the shares meant to be gifted. The donor delivered the registered gift deed together with the share certificates to the donee. On these facts the donation of the right to get share certificates made out in the name of the donee became irrevocable by registration as well as by delivery. The actual transfers in the registers of the companies concerned were to constitute mere enforcement of this right. They were necessary to enable the donee to exercise the rights of the shareholder. The mere fact that such transfers had to be recorded in accordance with the Company Law did not detract from the completeness of what was donated. [541G-542B] The broadly indicated requirements of regulation 18 of Table A of 1st Schedule to the Companies Act , 1913 were also complied with by the contents of the gift deed. It is immaterial that the gift deed deals with a number of items so long as the requirements of Regulation 18 are fulfilled. The observance of a form whether found in the Transfer of Property Act or in the Companies Act is meant to serve the needs of the substance of the transaction which were undoubtedly shown to have been completely fulfilled here. There is nothing in Regulation 18 to indicate that without strict compliance with some rigidly prescribed form, the transaction must fail to achieve its purpose. The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed, savors of archaic and outmoded jurisprudence. [543G-544A] Re Nose, Midland Bank Executer & Trustee Co. Ltd. v. <NAME>. 1949 Ch. D. 78, Re <NAME>, <NAME> v. <ORG>, 1932 (1) Ch.D. 499, <CITATION> ,  Supp. (2) SCR 448 @ 453 referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2515 of 1973, (From the judgment and Decree dated the 11th/12th July, 1972 of <ORG> in L.P. A. No. 40 of 1969.) <NAME>, <NAME> and <NAME> for the appellant. <NAME>, <NAME> and <NAME> for respondent No. 1.

The Judgment of the Court was delivered by <ORG> This appeal, after certification by <ORG> of fitness of the case for it, I rises in the following circumstances:

<NAME>, a flourishing lawyer, made a will, on 10-6-1945 and died childless on 20-8-1946. His widow, <NAME>, obtained, under the will, inter alia, certain shares the right and title to which are disputed before us. On 6-3-1948, <NAME> executed a registered gift deed purporting to donate the disputed shares in various limited companies, of which details were given in the gift deed, to her brother, <NAME>, the appellant before us (hereinafter referred to as "<NAME>"). On 18-4- 1948, <NAME> also expired. But, before she died, she had signed several blank transfer forms,apparently intended to be filled in by donee so as to enable him. to obtain the transfer of the donated shares in the registers of the various companies and share certificates in his own name. She had put her signatures in the correct places showing that she meant sign as the transferor of the shares. The shares could not, however, be transferred in the registers of the various companies, in accordance with the relevant provisions of Company law, before the lady's death. Therefore, the respondent before us, <NAME>, a nephew of the late <NAME>, disputed the claim of the appellant Vasudev Ramchandra <NAME> to these shares in an administration suit which came up before a learned Judge of <ORG> in second appeal together with other matters. The learned Single Judge held that <NAME> was entitled to the shares covered by the registered gift deed to which the blank transfer forms could be related but not to others said to have been orally gifted with which we are not concerned here. The learned Judge having granted leave to file a Letter's Patent Appeal, <ORG> of <ORG>, which considered the rival claims, reversed the decision of the learned Single Judge even with regard to the shares covered by the registered gift deed on the ground that the gift was incomplete for failure to comply with the formalities prescribed by the Companies' Act for "transfer" of shares. It held-that there was no equity in favour of <NAME> so that he may claim a right to complete what was left incomplete by the donor in her lifetime even though there could be no doubt that <NAME> had intended to donate the shares to <NAME>.

We think Mr. <NAME>, learned Counsel for the appellant <ORG>, rightly pointed out that every material finding on questions of fact, given in favour of the appellant, was upheld by <ORG>. After indicating the terms of the gift deed, <ORG> held:

"Thus, it is undoubtedly true that the deed of gift discloses a clear and unequivocal intention on the part of <NAME> that <NAME> should become the owner of these shares and he should for all future time enjoy the fruits thereof. it is a well settled position in law that unless the gift it completed as required by law, mere intention to make a gift cannot pass any title to the donee and does not make the donee the owner of the property gifted by the donor. The registered gift deed itself cannot create any transfer and so it was not competent to the donor to divest the title in her merely by the execution of the gift deed. She was required to execute the regular transfer deeds or instruments of transfer in favour of <NAME> Shelat and hand them over to the donee, <NAME> Shelat, together with the share certificates."

It went on to say:

"The circumstances as they clearly emerge and the facts as found by the Courts below, go to show that the deed of gift was executed on March 6, 1948, and, at the same time, the re- levant share-certificates were handed over by the donor to the donee; and, sometime between March 6, 1948, when the gift deed was executed, and April 18, 1948, when <NAME> died blank transfer forms signed by <NAME> were handed over by <NAME> to <NAME>, the donee."

The appellant's submissions, on facts found, may be summarised as follows:

(1) As between the donor and the donee the transfer was complete with the registration of the gift deed; and, as there was a registered document, even delivery of share certificates to the donee was not necessary in view of Section 122 Transfer of Property Act.

(2) Assuming, without conceding that the donor had to do something more than to execute a registered document, this too was done when the shares certificates and the signed "blank transfer" forms were handed over to the donee by the donor. It did not matter if the name of the donee and other particulars are wanting in these blank forms. All necessary particulars of shares involved were expressly mentioned in the gift deed which specifies and identifies each individual share meant to be donated. The gift deed and the signed blank forms had to be read together. The donor had done all that reasonably lay with- in her power to complete the donation.

(3)The conduct of the donor, in handing over the share certificates to the donee and the blank transfer forms, read in the context of the expressly laid down intentions of the donor in the gift deed, raised the presumption of an implied authority to fill in the details and to submit to the companies concerned the forms given by the donor to <NAME> before her death.

(4) There was no evidence whatsoever in the case to repel the irresistible inference of an implied authority given to the donee to fill in and submit the transfer forms so as to obtain the necessary entries in the registers of the various companies concerned.

(5) <ORG> had, after giving all the necessary findings of fact in favour of the appellant, misdirected itself by resorting to the doctrine that there is no equity to complete an incomplete transaction, as there is when a bonafide purchaser for value comes before the <ORG>.

There was no question of any equity involved here. The simple question was one of fact. Did the inference of an implied authority of the donee to fill in the forms and take other steps necessary to get his name entered in the registers of shareholders arise or not? Instead of considering and deciding whether such an inference arose, <ORG> had failed to decide the real issue on the erroneous view that equity debars it from inferring an implied authority because the donee, unlike a bona fide purchaser for value, had paid nothing for the rights he could get from the donor.

All that could be urged on behalf of the respondent may be summed up as follows :

(1) The facts found make out, at best, an intention of <NAME> to donate but not the completion of a donation required by law for divesting the donor of interest in the property under consideration which consisted of shares. (2) Although shares are goods, as defined by the Sale of Goods Act , yet, they are 'goods' of a special kind. Their transfer is not completed merely by the execution of a registered document or by delivery but the correct mode of transfer is determined by the character of these "goods" Sec. 123 of the Transfer of Property Act lays down only a general mode of transfer by gift for goods in 'general but not for the transfer by gift of shares which are a special type of 'goods' capable of transfer only in accordance with a special mode prescribed by the Companies Act of 1913, which was applicable at the relevant time. In other words, an adoption of the prescribed form of transfer is of the essence of a transfer for all purposes and not merely as between the shareholder and the company concerned. (3) Sections 122 & 123 of the Transfer of Property Act had to be read harmoniously with Sections 28 and 34 of the Companies Act, 1913.

(4) Since material portions of the transfer form given in regulation 19 of Table A of the first Schedule of the Companies Act of 1913 were never filled in, the doctrine of "substantial compliance" with the required form could not come to the aid of the appellant.

(5) The gift deed itself does not empower the donee to take any of those steps which remained to be taken to complete the 'transfer', so that the doctrine of implied authority would be excluded by the ex. press terms of the gift deed which not only do not confer any such authority Upon the donee but indicated that the donor was to take the necessary steps herself.

(6) Inasmuch as acceptance of the gift "during the life- time of the donor" is a condition precedent to the validity of the gift as a transaction, and the appellant <NAME> did not apply for the transfer of shares, so as to indicate his acceptance of the gift before the dono died, the purported donation was frustrated by reason of Sec. 122 of of the Transfer of Property Act .

(7) Even if we were to assume that the facts proved disclosed that the appellant donee was armed with an implied authority to obtain a transfer, yet that authority not having been acted upon during the life-time of the donor, lapsed with the donor's death. The result was that the donation, even if intended, was imperfect or infructuous in the eye of law and could not be perfected or completed. Equity does not aid a merely purported donee who has given no consideration to obtain any right. In other words, equitable considerations would not be irrelevant in deciding the question before us.

(8)Even apart from equity, under the law of agency, found in sec. 201 of our Contract Act , the Principal's death terminates the agency, so that the doctrine of implied authority does not help the appellant.

(9) Section 202 of the Contract Act could not apply to a case where the subject-matter of the alleged agency is the taking of steps to complete a transfer and not the rights which could only accrue after the necessary steps are taken. Hence, the appellant donee could not be said to have an interest in the "subject-matter of the agency" which is distinct from rights which could have arisen if the object of the agency had been fulfilled.

(10) Section 202 of the Contract Act could apply to a case where an agent has an actual or existing interest in the subject-matter of the agency. Even if the subject-matter of the agency could be said to be "Property", consisting of shares, there could be no question of applying Section 202 of the Contract Act before an "'merest" in the shares arose. Such "interest" could only arise after a completed transfer. (11) Section 202 of the Contract Act contemplated cases of termination of agency in ways other than death. It meant that, so long as a Principal is alive, he could not terminate an agency so as to injure the interests of the agent in "the subject matter of the agency". But, in the case of the death of the Principal, the relationship terminated ipso facto or automatically by death. (12) A resort to the very concept of agency in this case presupposes that some interest of the Principal or the donor in the property said to be donated continued,-or, in other words, the assumption behind it was that the donation of shares was not complete in the eye of law. Its completion was not possible after the death of the donor. We think that questions to be really decided in the case before us have tended to become needlessly clouded by references to statutory provisions and to doctrines or concepts which really operate in separate and distinct fields of their own. It is true that the relevant provisions of the Transfer of Property Act and the Companies Act must be interpreted harmoniously. But, this certainly does not mean that a provision of one Act could be nullified by any provisions of the other Act. It means that the provisions of the two Acts should be- read consistently with each other so far as it is reasonably possible I to do SO.

<NAME>

We think that this end can be best achieved here by examining the objects and the subject-matter, of each enactment and by viewing each relevant provision as a limb of an integrated whole meant to serve the underlying purposes. In this way, their separable spheres of operation will be clarified so as to avoid possibilities of conflict between them or any unnecessary overflow of what really appertains to one field into another.

No doubt the Transfer of Property Act is not exhaustive. It does not deal with every kind of transfer of property which the law permits. Nor does it prescribe the mode for every legally recognised transfer. Nevertheless, it is an enactment meant for defining certain basic types of transfer and it lays down the requirements both of substance and of form for their legal recognition and effectiveness. Section 5 of this Act gives a wide connotation to "transfer of pro- perty". All that it requires is that the transferor must be living at the time of the transfer recognised by the Act. Section 6 of the Act lays down that "property of any kind may be transferred" subject to certain exceptions. Shares in a company are certainly a form of property. Section 28 of the Companies Act, 1913, says that they "shall be movable property, transferable in the manner provided by the articles of the company". Both sides accept as correct the view of <ORG> of <ORG>-that the shares are "goods" within the meaning of the Sale of Goods Act . The point which, however, deserves to be noted here is that wide definition of "property" in Section 6 of the Transfer. of Property Act includes not merely shares as transferable, movable property, but would cover, as a separable form of property, a right to obtain shares which may be antecedent to the accrual of rights- of a shareholder upon the grant of a share certificate in accordance with the articles of <ORG>.

<CITATION> .(1) which was a case of handing over share certificates together with blank signed transfer forms, <ORG> said (at p. 97-98):

"But" further, there seems to their Lordships a good deal of confusion arising from the prominence given to the fact that the full property, in shares in a company is only in the registered holder. That is quite true. It is ture that what <NAME> had was not the perfect right of property, which he would have had if he had been the registered holder of the shares which he was selling. The company is entitled to deal with the shareholder who Is on the register, and only a person who is on the register is in the full sense of the the word owner of the share. But the title to get on the register consists in the possession of a certificate, together with a transfer signed by the registered holder. This is what <NAME> had. He had the certificates and blank transfers, signed by the registered holders. It would be an upset of all <ORG> transactions if it were suggested that a broker who sold shares by general description (1) 53 Indian Appeals P. 92 @ P. 97-98.

did not implement his bargain by supplying the buyer with certificates and blank transfers, signed by the registered holders of the shares described. <NAME> sold what he had got. He could sell no more. He sold what in England would have been chooses in action, and he delivered chooses in action. But in India, by the terms of the Indian Contract Act , these chooses in action are goods. By the definition of goods as every kind of movable property it is clear that not only registered shares, but also this class of chooses in action, are goods. Hence, equitable considerations not applicable to goods do not apply to shares in India."

Thus, we find that, in <NAME>'s case (supra), a distinction was made between "the title to get on the register" and "the full property in the shares in a <ORG>.,' The first was held to have been acquired by mere delivery, with the required intention, of the share certificate and a blank form signed by the transferor. The second is only obtained when the transferee, in exercise of his right to become a shareholder, gets his name on the register in place of the transferor. This antecedent right in the person to whom the share certificate is given with a signed blank transfer form under a transaction meant to confer right or title upon him to become a shareholder, is enforceable so long as no obstacle to it is shown to exist in any of the articles of association of a company or a person with a superior right or title, legal or equitable does not appear to be there. We think that Section 6 of the Transfer of Property Act Justifies such a splitting up of rights constituting " property" in shares just as it is well recognised that rights of ownership of a property may be split up into a right to the "corpus" and another to the "usufruct" of the property and then separately dealt with. Sec. 122 of the Transfer of Property Act defines a ",gift". its substantial requirements are : (1) the donor must transfer "property", which is the subject-matter of the gift, voluntarily and without consideration; (2) and, the donee must accept it during the life-time of the donor or while the donor's competence to give exists. Section 123 of the Transfer of Property Act prescribes the mode of transfer by gift. It lays down that "the transfer may be effected either by registered instrument signed by the donor and attested by at least two witnesses or by delivery". No special mode of delivery is specified. On the other hand, it is indicated that the delivery "may be made in such a way as the goods sold are delivered".

In the case before us, the registered document was signed by the donor as "the giver" as well as by the donee as "the acceptor" of the gift, and it is attested by six witnesses. In it, the donor specified and gave particulars of the shares meant to be gifted and undertook to get the name of the donee put on to the registers of the companies concerned. The donor even said that she was, thenceforth, a trustee for the benefit of the donee with regard to the income she may get due to the fact that her name was still entered in the registers of the companies concerned as a shareholder. The donor delivered the registered gift deed together with the share certificates to the donee. We think that, on these facts, the donation of the right to get share certificates made out in the name of the donee became irrevocable by registration as well as by delivery. The donation of such a right, as a form of property, was shown to be complete so that nothing was left to be done so far as the vesting of such a right in the donee is concerned. The actual transfers in the registers of the companies concerned were to constitute mere enforcements of this right. They were necessary to enable the donee to exercise the rights of the shareholder. The mere fact that such transfers had to be recorded in accordance with the company law did not detract from the completeness of what was donated. We think the learned Counsel for the appellant rightly contended that, even in the absence of registration of the gift deed, the delivery of the documents mentioned above to the donee with the clear intention to donate, would be enough to confer upon the donee a complete and irrevocable right, of the kind indicated above, in what is movable property. He relied upon : <CITATION> .(1); <CITATION> ;(2) Firm Sawan Mat Gopi Chand v. <NAME>).

The requirements of form or mode of transfer are really intended to ensure that the substantial requirements of the transfer have been satisfied. They subserve an object. In the case before us, the requirements of both Section 122 and Section 123 of the Transfer of Property Act were completely met so as to vest the right in the donee to obtain the share certificates in accordance with the provisions of the Company law. We think that such a right is in itself "property" and separable from the technical legal ownership of the shares. The subsequent or "full rights of ownership" of shares would follow as a matter of course by compliance with the provisions of Company law. In other words, a transfer of " 'property" rights in shares, recognised by the Transfer of Property Act , may be antecedent to the actual vesting of all or the full rights of ownership of shares and exercise of the rights of shareholders in accordance with the provisions of the Company law.

The Companies Act of 1913 was meant "to consolidate and amend the law relating to trading companies and other associations". It is concerned with the acts and proceedings relating to the formation, running, and extinction of companies, with rights, duties, and liabilities of those who are either members or officers of such companies, and of those who deal with companies in other capacities. Its subject-matter is not transfer of property in general. It deals with transfers of shares only because they give certain rights to the legally recognised shareholders and imposes some obligations upon them with regard to the companies in which they hold shares. A share certificate not merely entitles the shareholder whose name is found on it to interest on the share held but also to participate in certain proceedings relating to the company (1) 54 I. A. 89.

(2) ILR 52 Bom. 313.

(3) AIR 1924 Lab. 173.

concerned. It is for this purpose that Section 34 of the <ORG>mpanies Act, 1913 enables the making of "an application for the registration of the transfer of shares in a <ORG>......... either by the transferor or the transferee". A share certificate is a prima facie evidence, under Sec. 29 of the Act, of the title to a share. 'Sec. 34 of the Act does not really prescribe the mode of transfer but lays down the provisions for "registration" of a transfer. In other words, it presupposes that a transfer has already taken place. The manner of transfer of shares, for the purposes of <ORG>mpany law, has to be provided, as indicated by Sec. 28, by the articles of the <ORG>mpany, and, in the absence of such specific provisions on the subject, regulations contained in Table 'A' of the 1st Schedule of the <ORG>mpanies Act apply.

Table 'A' of the 1st Schedule to the Companies Act of 1913 gives regulation 19 as follows "19. Shares in the company shall be transferred in the following form, or in any usual or common form which the directors shall approve :

1, A. B. of in consideration of the sum of rupees paid to me by <NAME> (hereinafter called "the said transferee"), do hereby transfer to the said transferee the share (or shares) numbered in the undertaking called <ORG>, to hold unto the said transferee, his executors, administrators and assigns, subject to the several conditions on which I held the same at the time of the execution thereof, and I (the said transferee) do hereby agree to take the said share (or shares) subject to the conditions aforesaid. As witness our hands the day of Witness to the signatures of, etc."

Apparently, the form given here is only for sales. In the case of a gift the more general provisions of regulation 18 would apply. This regulation says :

"The instrument of transfer of any share in the company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain holder of the share until the name of the transferee is entered in the register of members in respect thereof." We find from the gift deed that both the donor and the. donee have signed the document, under two headings respectively : "giver of the gift" and "acceptor of the gift". Hence, we think that the broadly indicated requirements of regulation 18 were also complied with by the contents 'of the gift deed.- It is immaterial that the gift deed deals with a number of items so long as the requirements of regulation 18 are fulfilled. After all, the observance of a form, whether found in the Transfer of Property Act or in the Companies Act , is meant to serve the need of the substance of the transaction which were undoub- tedly shown to have been completely fulfilled here. There is nothing in regulation 18 or anywhere else in our Company law to indicate that, without strict compliance with some rigidly prescribed form the transaction must fail to achieve its purpose. The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed savors of archaic and outmoded jurisprudence. <NAME> on the Companies Act s (XIII-Edn. p. 813) was cited before us for the proposition-that "non registration of a transfer of shares made by a donor does not render the gift imperfect". Considerable argument was advanced by both sides on the correct interpretation of the leading English case mentioned there : Re Nose, Midland Bank Executor & Trustee Co. Ltd. v. Rose,(1) where <NAME> after an exhaustive discussion of the English case law on the subject, held that when a testator had done everything that lay in his power to divest himself of his Fights in preference shares "completion of the legal title by registration could only be the act of a third party which did not affect the efficacy of the gift of shares inter- vivos". <ORG> upheld this decision in : In Be Rose V. Inland Revenue Commissioners.(2) It held that "the deceased was in the position of. a trustee of the legal title in the shares for the transferees", pending the entry of the names of the donees in a company's register and the issue of share certificates to them. In the case before us, we find that <NAME> had actually stated in the gift- deed that her position, vis-a-vis the donee, who had accepted the gift, was that of a trustee for the benefits received by her from the gifted shares until the completion of the legal formalities so that appropriate entries are made in' the registers of companies concerned and fresh share certificates are issued to the donee. We, therefore, think that this case helps the appellant. <CITATION> (3), considering a case of blank transfers, <NAME>, speaking for this Court, said (at p. 453) :

"In such blank transfers, the name of the transferor is entered, and the transfer deed signed by the transferee, who, if he so chooses, completes the transfer by entering his name and then applying to the company to register his name in place of the previous holder of the share. The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable. of course, between the transferor and the transferee, certain equities arise even on the execution and handing over of a blank transfer', and among these equities is the right of the transferee to claim the dividend declared and paid to the transferor who is treated as a trustee on behalf of the transferee. These equities, however, do not touch the company, and no claim by the transferee whose name is not in the register of (1) [1949] Ch. D. 78. (2) [1932] (1) Ch. D. 499.

(3) [1959] Supp. (2) SCR 448 @ 453.

members can be made against the company, if the transferor retains the money in his own hands and fails to pay to it to him."

This case also makes a distinction between an antecedent right and title of the transferee under a blank transfer and the fully blossomed rights and title of such a transferee after the due registration of a transfer. Another case cited before us was : R. Subba Naidu v. Commis- sioner of Gift Tax, Madras,(1) where a distinction was made between a transfer of the antecedent right to the shares which operated with full force between a donor and the donee, "notwithstanding that, vis-a-vis the company, the donor continued to be holder of the shares in the absence of transfer of shares". In other words, the fields of operation of the provisions of Sections 122 and 123 of the Transfer of Property Act and the provisions of the Companies Act 1913 were different. Each had different objects and legal consequences. The Companies Act did not prevent the completion of a gift of the right to obtain the shares which could, in common parlance or loosely speaking, be spoken of as a gift of shares themselves even before the gift is acted upon so that the donee obtains share certificates in his own name. The Transfer of Property Act could not enable the donee to exercise the rights of a shareholder, vis-a-vis the company, until a transfer of shares is made in accordance with the Company law.

other cases cited on behalf of the appellant, which we will only mention without discussion, were

1. <ORG> v. Hepworth(2);

2. In Re. Tahiti Cotton Company ex-parte Sargent(3);

3. In Re. <ORG>);

4. In the matter of <ORG>);

5. <CITATION> - yana Rao & Ors.(6);

6. <NAME> &.Ors. v. <ORG> (7);

7. <NAME> v. <NAME> & Anr.(8).

Learned Counsel for the respondent cited the following passage from the Palmer's Company Law (21st edition-1968, p.

A transfer is incomplete until registered. Pending registration, the transferee has only an equitable right to the shares transferred to him. He does not become the legal owner until his name is entered on the, register in respect of these shares."

(1) [1969] (Vol. 73) I.T.R. 794.

(2) [1887] (36) Ch. D. 36.

(3) [1873] (17) Equity Cases 273@ 279.

(4) [1904] (1) Ch. D. 815, (5) AYR 1942 Cal. 461 @ 464.

(6) RR [1957] Mad 1958 @ 1072.

(7) AIR 1956 Pat. 32.

(8) 16 C.W.N. 666.

This statement of the law in England is correct. The transferee, under a gift of shares, cannot function as a shareholder recognised by company law until his name is formally brought upon the register of a company and he obtains a share certificate as already indicated above. indeed, there may be restrictions on transfers of shares either by gift or by sale in the articles of association. Thus" we find in Palmer's Company Law (at p. 336) :

"There is nothing to limit the restrictions which a company's articles may place on the right of transfer. The articles may give the directiors power to refuse to register a transfer in any specified cases, for instance, where calls are in arrear, or where the company has a lien on the shares-and some such provisions are usually inserted. Thus article 24 provides that the directors may decline to register any transfer of a share (not being a fully paid share) to a person of whom they do not approve, and may also decline to register any transfer of shares on which the company has a lien. But the articles in many cases go far beyond this. They may prohibit, for example, the transfer of a share to any person who is not a member of a specified class, or provide, as they often do in private com- panies, that before transferring to an outsider the intending transferor must first offer the shares to the other members, and give them a right of pre-emption. Such provisions, though permanent, do not contravene the rule against perpetuities."

In the type of cases contemplated above, where there are special restrictions on the transfer of shares imposed by the articles of association, the difficulty or defect is inherent in the character of such shares. In such cases, the donee or purchaser cannot get more than what the transferor possesses. Therefore, in such cases, it is possible to hold that even the right and title to obtain shares, which we have viewed as separable from the legal right and title to function as a shareholder, is incomplete because of a defect in the nature of shares held due to some special restrictions on their transferability under the articles of association of the company concerned. But, such is not shown to be the case at all with any of the shares which formed the subject-matter of the gift in favour of <NAME>. Hence, in our opinion, cases which deal with inchoate rights to shares do not assist the respondent because at least a gift of the right to obtain the transfer of shares in the books of the companies concerned was shown to be complete on the terms of the gift deed of <NAME> coupled with the handing over of the share certificates and the subsequent signing of the blank transfer forms. It was not a ease of a bare expression of an intention to donate. The donor had done everything which she could reasonably be expected to do to divest herself of her rights in the shares donated.

Ireland v.. Hart'(1) relied upon by the respondent, was a case in which a prior equitable title of a wife, for whom the husband was a (1) [1902] (1) C.D. p. 522 @ 529.

trustee, took precedence over the claim of a subsequent mortgagee. This case was cited in Palmer's Company Law as an instance of how delay in registration may endanger the claims of a transferee when some already existing prior equity comes to light In upholding the wife's claim of a prior equitable right the <ORG> said (at p. 529) :

"It is established by Societe Generale de Paris v. <NAME> (11 App. Case 20), <NAME> v. <NAME> (38 Ch. D. 485); and <NAME> v.

North Western Bank [1891(2) Ch. 599] that, where the articles are in the form in which they are in the present case, a legal title is not acquired as against an equitable owner before registration, or at all events until the date when the person seeking to register has a present absolute and unconditional right to have the transfer registered. I am not called upon to define the meaning of a present absolute and unconditional right, but, as it appears to me, I am not sure that anything short of registration would do except under very special circumstances. At all events, I am of opinion that in this case, prior to the date of the injunction, the defendant <ORG> had not a 'present absolute and unconditional right' to the registration of the transfer of these shares, and that the prior equitable right of the plaintiff, Mrs. <NAME>, must prevail."

Thus, what was disputed there was the right to obtain registration of a transfer of shares. The husband's power to mortgage was itself circumscribed by his position as a trustee. It was also pointed out in Palmer's Company Law (at p. 334) "It has never been clearly decided in what circumstances the `present, absolute, unconditional right to have the transfer registered' to which Lord <NAME> refers arises. It is thought that in many instances the test is that indicated by <ORG> in Re. Rose.

'I was referred on that to the well known case of <NAME> v. <NAME> and also the recent case of Re. <NAME>, Chase National Executors & Trustees Corpn. v. <NAME>. Those cases, as I understand them, turn on the fact that the deceased donor had not done all in his power, according to the nature of the property given, to vest the legal interest in the property in the donee. In such circumstances it is of course, well settled that there-is no equity to complete the imperfect gift. If any act remained to be done by the donor to complete the gift at the date of the donor's death the court will not compel his personal representatives to do that act and the gift remains incomplete and fails. In <NAME> V. <NAME> the imperfection was due to the fact that the wrong form of transfer was used for the purpose of transferring certain bank shares, The document was not the appropriate document to pass any interest in the property at all. In Re <NAME> the flaw in the transaction, Which was a transfer or transfers of shares in a certain company, was failure to obtain the consent of the <ORG> which in the circumstances surrounding the transfers in question was necessary under the Defence (Finance Regulations) Act 1939, and, as appears from the head-note, what was held was that the donor's executors ought not to execute confir-

matory transfers. In this case, as I understand it, the testator had done

everything in his power to divest himself of the shares in question to Mr. <NAME>. He had executed a transfer. It is not suggested that the transfer was not in accordance with the company regulations. He had handed that transfer together with the certificates to Mr. <NAME>. There was nothing else the testator could do.... Therefore it seems to me that the present case is not in pari materia with the two cases to which I have been referred. The real position, in my judgment, is that the question here is one of construction of the will. The testator says "if such preference shares have not been transferred to him previously to my death." The position was that, so far as the testator was concerned, they had been so transferred."

Respondent's learned Counsel also relied on Re <ORG> v. <ORG>) which has been referred to by <ORG> in the passage quoted above. In that case, apart from other distinguishing features, the flaw in the purported transfer was that it contravened the Defence (Finance Regulation) Act, 1939, which prohibited an acquisition of interest in the shares without a licence from the <ORG>. Hence, the purported transfer was really illegal. No such illegality is shown to exist in the case before us.

Respondent's learned Counsel cited <CITATION> , (2) where, after a husband had executed a document in favour of his wife, the parties had done nothing to get the transfer registered for nearly 2 years during which the dividend was received sometimes by the wife and sometimes retained by the husband with the permission or implied consent of the wife. The Court held that the purported gift being an intended "transfer" only could not operate as a "declaration of trust". Another ground for the decision was that "the disposition of the shares failed as being imperfect voluntary gift". Here, <ORG> purported to follow <NAME> v. <NAME>, (3) and, <NAME> v. Delbridge(4). No such facts are present in the case before us. Moreover, we seriously doubt the correctness of this decision of <ORG>. It seems to conflict with the law declared in the cases cited by the appellant which we approve.

Another case relied upon by the respondent was: <CITATION> . (supra), where the <ORG> refused,. to direct rectification of a register of member s (1) 1946 (2) All. E.R. 106.

(2) ILR [1921] Cal. 986.

(3) 1862 (4) DEG. F. & J. 264.

(4) 1874 LR. 18 Eq. II.

<NAME>

because the articles of association vested an absolute discretion in the company to recognise or refuse to recognise a transfer. The Company's consent to a transfer had been refused because the company did not accept the correctness of the form of transfer deeds. In other words, this was a case in which the provisions of articles of association stood in the way of rectification of the register. Such is not the case before us. The result is that We do not think that the respondent has made out a case for defeating the clearly expressed intentions of the donor coupled with the authority with which the donee was armed by reason of the signed blank transfer forms. We think that the implied authority was given with regard to a subject matter in which <NAME> had acquired an interest. On a correct interpretation of the gift deed and the other facts mentioned above, we are of opinion that the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question here of competing equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. This right could only be defeated by showing some obstacle which prevented it from arising or which could defeat its exercise. No such obstacle having been shown to us to exist, the rights of the donee appellant would prevail as against any legal rights which could have accrued to others if the donee had not already acquired the legal right which, as held by us above, had become vested in him. We, therefore, allow this appeal with costs and set aside the judgment and decree of <ORG> of <ORG> and restore that of the learned Single Judge. Appeal allowed <NAME>

3-MI85 Sup. CI/75