Topic: Rameshwar Pandey And Anr. vs Suresh Pandey

Rameshwar Pandey And Anr. vs Suresh Pandey
Equivalent citations: 2007 (2) BLJR 895 - Bench: S M Alam - 9 February, 2007

ORDER

Syed Md. Mahfooz Alam, J.

1. This appeal has been preferred against the judgment and decree dated 15.9.1976 and 9.11.1976 respectively passed by Sri Ram Kishore Singh, Additional Subordinate Judge, Jamui in Title Suit No. 20 of 1972/3 of 1976 whereby he has been pleased to dismiss the suit of the plaintiffs-appellants seeking relief for declaration of their title and confirmation of possession and in the alternative, for recovery of possession with respect to the suit land and also for declaration that the defendant did not acquire any title of the suit property by virtue of gift deed dated 7.8.70 executed by Lachho Devi in his favour.

2. The plaintiffs' case, in short, is that Sadar Pandey, son of deceased Yadunath Pandey was resident of Mauza Masauri, Mohalla Mahrajganj, District Jamui. He died in between 1944-45 leaving behind him his widow, Smt. Tita Kumari and his son Baldeo Pandey as his legal heirs and accordingly, Tita Kumari and Baldeo Pandey succeeded to the properties of Sardar Pandey half and half. Baldeo Pandey, the only son of Sardar Pandey, died in the month of January, 1951 leaving behind him his mother Mostt. Tita Kumari and his wife Lachho Devi as his legal heirs. Tita Kumari, widow of Sardar Pandey also died some time after 1951 and before 1955 leaving behind him her only daughter Smt. Shyama Devi wife of plaintiff No. 1 and mother of plaintiff Nos. 2 and 3. After the death of Tita Kumari, Shyama Devi succeeded to the interest of Smt. Tita Kumari and accordingly, she came in possession of the half share of Tita Kumari in the property of Sardar Pandey. After enactment of the Hindu succession Act, 1956 Smt. Shyama Devi became absolute owner of the Page 0898 property left by Tita Kumari. The said Shyama Devi died in the year 1963 leaving behind her the plaintiffs as her legal heirs.

Further case of the plaintiffs is that 1 acre 17 decimals of land appertaining to Khata No. 22 Khesra No. 34 of village Ganesh Nawada, P.S. Sikandra which originally belonged to Shyam Lal Pandey and Pitamber Pandey sons of Guru Dayal Pandey and Bahsi Pandey, son of Kamal Pandey of village Konnan was acquired by a registered sale deed dated 9.1.1909 in the name of Tita Kumari, widow of Sardar Pandey and since then Tita Kumari was the sole owner of the said property and had been continuously coming in possession of the same as absolute owner of the said property. After the death of Tita Kumari, her only daughter Shyama Devi inherited the said property and came in exclusive possession of the property. After the death of Shyama Devi in the year, 1968 the plaintiffs came in possession of the said property. It is said that as the property was self-acquired property of Tita Kumari, as such Sardar Pandey or Baldedo Pandey or Lachho Devi had no concern with the said property and they were never in possession of the same.

Further case of the plaintiffs is that after the death of Baldeo Pandey on 18.1.51, his widow Lachho Devi and the widow of Sardar Pandey, namely, Tita Kumari came in possession of the land and house appertaining to Khesra No. 950 of Mauza Masauri half and half. In the said house the plaintiff No. 1 was also residing under the guardianship of Lachho Devi and till today the plaintiff No. 1 along with other plaintiffs are residing in the said house. The said Sardar Pandey had also constructed a Thakurwari on the said plot (Khesra No. 950) which still exists and the plaintiffs are maintaining the Thakurwari after the death of Lachho Devi. It is said that after the death of Lachho Devi, the plaintiffs have succeeded to the interest of Lachho Devi with respect to the house and Thakurwari standing over Khesra No. 950 and the lands appertaining to the said Khesra.

Further case of the plaintiffs is that in the year 1970 Lachho Devi became very old and due to old-age (65 years) she became very weak. She was also suffering from stomach disease due to which her health deteriorated to such extent that in the last week of July, 1970 she lost her consciousness. It is alleged that while Lachho Devi was critically ill, the plaintiffs No. 1 and 2 in the month of August, 1970 (between 4 to 10 August) had gone to the house of the plaintiff No. 3 as the husband of plaintiff No. 3 had fallen ill and taking advantage of the absence of the plaintiff, defendant Suresh Pandey with the help and collusion of Banswasi Pandey and some other persons got a forged and fabricated deed of gift prepared and thereafter they took the L.T.I. of Lachho Devi on the said document on 7.8.70 and got the document registered by playing fraud upon the Sub-Registrar, Jamui. The plaintiffs could know about the existence of the said document after the Shradh ceremony of deceased Lachho Devi and obtained the certified copy of the gift deed executed on 7.8.1970 and then the plaintiffs could know about the fraud committed by the defendant. It is said that the deed of gift is a forged, fabricated and void document and the execution of the said document has given rise to filing of the suit.

3. The defendant has appeared in the suit and contested the claim of the plaintiffs by filing written statement. According to the written statement of the defendant, the suit is barred by Law of Limitation, estoppel, waiver and acquiescence and is Page 0899 bad for non-joinder of necessary party as Sardar Pandey had left behind him one more daughter, namely, Maharani Devi who was married to Amrit Pandey, resident of village Balwapar, P.S. Warsaliganj, District Gaya, but her two sons, namely, Sita Ram Pandey and Binda Pandey as well as two daughters Binda Pandey were not impleaded as parties to the suit. Further erase is that Sardar Pandey (common ancestor) died in the year, 1935 (not in between 1944-45) leaving behind his son Baldeo Pandey as his sole heir and successor and it is false to say that Tita Kumari, the widow of Sardar Pandey, came in possession of the property left by Sardar Pandey, half and half. The fact is that Baldeo Pandey, the only son of Sardar Pandey, inherited the entire 16 annas interest in the property left by Sardar Pandey. The defendant has also asserted that Tita Kumari predeceased Baldeo Pandey although both Baldeo Pandey and Tita Kumari died in the year 1951 and after the death of Baldeo Pandey, his widow Lachho Devi came in possession over the entire property left by Sardar Pandey. The defendant has further asserted that it is false to say that after the death of Tita Kumari, her daughter Shyama Devi came in possession of 8 annas share. The defendant has further alleged that after enactment of the Hindu Succession Act, 1956, Lachho Devi who inherited the entire interest of her husband in the property left by Baldeo Pandey, became the full owner of the property having unfettered right for enjoyment of the property with right to alienation of the property.

Further case of the defendant is that it is false to say that Tita Kumari had herself purchased the property under Mauza Ganesh Nawada appertaining to Khata No. 22 Khesra No. 34 through a registered sale deed dated 9.1.1909 and the reality is that the entire consideration money for purchasing the said property was paid by Sardar Pandey from his own pocket who purchased the land in the name of his wife Tita Kumari. It is alleged that Sardar Pandey kept the original sale deed with him so long as he was alive and after his death, the original sale deed was somehow taken by plaintiff No. 1 who took advantage of his being son-in-law of Sardar Pandey and Tita Kumari. It has been denied that since 1909 Tita Kumari had been coming in exclusive possession of the property of Ganesh Nawada and that after the death of Tita Kumari, Shyama Devi came in exclusive possession of the property of Ganesh Nawada and after her death the plaintiffs came in possession of the same. It has been asserted that after the death of Sardar Pandey, Baldeo Pandey came in exclusive possession of the land of Mauza Masauri and it is false to say that Tita Kumari has half-share in the said property. It has also been denied that plaintiff No. 1 was residing in the said house along with his family members under the guardianship of Lachho Devi. It has been contended that that Lachho Devi was absolute owner of the suit property and had been coming in exclusive possession of the house, Thakurwari and lands appertaining to plot No. 950 of Mauza Masarui, Maharajganj, Jamui as well as of Ganesh Nawada and she being the absolute owner of the above said property, executed the deed of gift dated 7.8.1970 in favour of the defendant and since the date of execution of the gift deed, the defendant had been coming in possession of the entire property as full owner. The defendant has also denied that Lachho Devi was very weak and unconscious at the time of execution of the gift deed. It has been stated that she was quite healthy and conscious till the last hours of her life. It has further been contended that Lachho Devi has executed the deed of gift after knowing and understanding the contents Page 0900 of the deed and it is altogether false to say that the gift deed is a forged and fabricated document which has been brought into execution after playing fraud upon the Registrar. The defendant has also denied that the plaintiffs were residing in the house or Thakurwari standing on plot No. 950. It has been asserted that the defendant had performed Dah Sanskar and Shradh of Lachho Devi and at the time of Shradh of Lachho Devi he had invited the plaintiffs to attend the Shradh ceremony and since then the plaintiff No. 1 is residing in the boundary of Thakurwari and is refusing to vacate the same. The prayer has been made to dismiss the suit of the plaintiffs.

4. From perusal of the judgment of the trial court it appears that on the basis of the pleadings of both the parties, the trial court framed as many as seven issues for consideration which are as follows:

1. Is the suit as framed maintainable?

2. Have the plaintiffs got any cause of action and right to sue?

3. Is the suit barred by law of Limitation and Specific Relief Act?

4. Is the suit bad for defects of parties?

5. Is the deed of gift dated 7.3.70 valid?

6. Whether the property of Mauza Ganesh Nawadah was self-acquired property of Tito Devi or that was acquisition of her husband Sardar Pandey?

7. To what other relief or reliefs, if any, are the plaintiffs entitled to get?

5. On perusal of the judgment of the trial court it appears that the trial court discussed all the abovementioned issues elaborately and then gave its finding on different issues. It appears that on issue No. 4 the trial court held that the suit was bad for non-joinder of necessary party as plaintiff Shyama Devi had one more sister, namely, Mahrani Devi who predeceased her leaving behind two sons who were not made party to the suit. On issue No. 6 the trial court held that the property of Mauza of Ganesh Nawada was not the self-acquired property of Tita Kumari but the same was acquired by her husband Sardar Pandey in her name. On issue No. 5 the trial court held that the gift deed dated 7.3.1970 executed by Mostt. Lachho Devi was a genuine and valid document. However, on issue No. 3 the trial court held that the suit is not barred by Law of limitation as the suit was filed within three years from the date of execution of the gift deed. On issue No. 2 with regard to plaintiffs' right to sue and with regard to cause of action the trial court held that the plaintiffs have no cause of action or right to sue as the executant of the deed of gift Smt. Lachho Dev was full owner of the property which she gifted away by the said deed and hence after the execution of the deed of gift, the plaintiffs have no title or interest in the suit property. Finally on the basis of the above findings the court below dismissed the suit of the plaintiffs against which this appeal has been preferred.

6. The learned Advocate of the appellants while arguing in the appeal vehemently argued that the findings of the trial court were incorrect and not in accordance with law. His main contention was that Mostt. Lachho Devi had no right to execute the gift deed with respect to the properties left by Sardar Pandey and the gift deed dated 7.8.1970 executed by Mostt. Lachho Devi in favour of defendant-respondent Suresh Pandey is illegal, invalid and not a genuine document and was brought into existence by playing fraud upon Lachho Devi. On the contrary the Page 0901 learned Advocate of the respondent has fully supported the views of the trial court on all the issues.

7. On the basis of the arguments advanced on behalf of the respective lawyers, the following points arose for determination in this appeal.

(i) Whether Mostt. Lachho Devi had right to execute the gift, deed dated 7.8.70 (Ext.D) with respect to the properties left by Sardar Pandey?

(ii) Whether the gift deed dated 7.8.1970 executed by Mostt. Lachho Devi in favour of defendant-respondent Suresh Pandey is a valid and genuine document and the same was executed by Mostt. Lachho Devi with her free will and consent or the same has been brought into existence by playing fraud upon her?

(iii) Whether the suit is bad for non-joinder of necessary party?

Point No. (i)

8. First of all, I would like to take up the point as to whether Mostt. Lachho Devi had any right to execute the gift deed or not. According to the case of the plaintiffs, there are two types of properties in dispute - one is of Mauza Ganesh Nawada measuring 1 acre 17 decimals of land which is said to be the self-acquired property of Mostt. Tita Kumari purchased through the sale deed executed in her favour on 9.1.1909. Another property is land measuring 13 decimals appertaining to plot 950 under Khata No. 8 which is said to be the joint family property acquired by Sardar Pandey. According to the plaintiffs, the last male holder of the property, namely, Sardar Pandey had one son, namely, Baldeo Pandey and one daughter, namely, Shyama Devi. He died in the year 1944-45 (according to the defendant, he died in 1935) leaving behind him his widow Mostt. Tita Kumari, his only son Baldeo Pandey and his daughter Shayama Devi. After his death, his property was inherited by his son and his widow half and half as per the law prevalent at that time. Further case of the plaintiffs is that Baldeo Pandey died in the year 1951 leaving behind him his widow Mostt. Lachho Devi who inherited the half share belonging to her husband. Further case of the plaintiffs is that after the death of Baldeo Pandey, her mother Mostt. Tita Kumari also died and her half share was inherited by her daughter Shyama Devi and after her death, the plaintiffs inherited her share being her heirs. Further case is that after the death of Mostt. Lachho Devi, the plaintiffs came in possession of the properties left by Lachho Devi.

9. Let me examine as to whether on the basis of the admitted case of the plaintiffs, the plaintiffs are entitled to any share in the property left by Sardar Pandey or Tita Kumari. At this stage, I would like to point out that it was the initial case of the plaintiffs that the property of Ganesh Nawada was the self-acquired property of Mostt. Tita Kumari and as such after her death Shyama Devi was alone entitled to inherit that property. The trial court has negatived this claim of the plaintiffs and has held that the property of Ganesh Nawadh was not the self-acquired property of Mostt. Tita Kumari rather it was the acquisition of her husband Sardar Pandey who had purchased the property in the name of his wife Tita Kumari through sale deed dated 18.12.1909 (Ext.3). From perusal of the judgment of the trial court it appears that the trial court has made elaborate discussion on that point at paragraphs 8 and 9 of his judgment and there is no need to incorporate all those discussions in my judgment. I am of the view that Page 0902 in this regard it will be enough to refer the admission of the plaintiffs made at para 24 of his deposition. The plaintiff, who has been examined as P.W.8, has categorically stated at paragraph 24 of his deposition that the property of Ganesh Nawada was purchased by Sardar Pandey in the name of his wife Mostt. Tita Kumari. Thus, from the admission of the plaintiff (P.W.8) it is established beyond doubt that both the properties in dispute are the joint family property of Sardar Pandey and the finding of the trial court in this regard is correct and according to the evidence available on record.

10. The case of the plaintiffs is that Sardar Pandey died in the year 1944-45 leaving behind him his widow Mostt. Tita Kumari and his only son Baldeo Pandey. By that time Hindu Women's Rights to Property Act 1937 had already been introduced and after coming into force of the said Act, on the death of the husband, the widow became entitled to have the same interest in the property left by her husband as her husband had. However, under Sub-section (3) of Section 3 of the said Act, she was a limited owner. Thus, according to the case of the plaintiffs after the death of Sardar Pandey, his widow Tita Kumari and his son Baldeo Pandey will inherit half and half share in his property although Mostt. Tita Kumari will hold the property as limited owner. Since Baldeo Pandey had also died in the year 1951 before coming into force of the Hindu Succession Act, 1956, as such on his death, his widow Lachho Devi will acquire the same interest as he had in the property although she will also be a limited owner of the property. I find that upto this stage there is no difference between the Advocates of both the parties but the difference between both the Advocates starts after the death of Tita Kumari which also occurred prior to enactment of Hindu Succession Act, 1956. According to the learned Advocate of the plaintiffs - appellants, after the death of Tita Kumari which occurred before coming into force of 1956 Act, Shyama Devi, the daughter of Sardar Pandey, will inherit the share of Mostt. Tita Kumari as by that time her son Baldeo Pandey was dead but according to the lawyer of the defendant-respondent, on the death of Tita Kumari, Shyama Devi, the daughter of Sardar Pandey, will not inherit her interest rather the property will revert back to Sardar Pandey and then it will revert back to Baldeo Pandey but as by that time Baldeo Pandey was not alive his widow Lachho Devi-will inherit her share. I think that this argument of the learned Advocate of the respondent is in accordance with Sub-section (2) of Section 3 of the 1937 Act.

11. Sub-section (2) of Section 3 of the 1937 Act puts the widow of a member of a joint family in place of her deceased husband and husband's interest in the joint family property under Mitakshara School vests immediately upon his death on the widow and the widow acquires the same interest in the joint family property. Thus, I am not in a position to accept the argument of the learned Advocate of the appellants that after the death of Mostt. Tita Kumari, her daughter Shyama Devi will inherit her interest in the joint property. I, therefore, hold that after the death of Tita Kumari which had occurred after coming into force of the 1937 Act and before 1956 Act, the widow of her son, namely, Lachho Devi will inherit her interest in the joint family property. I further hold that so long as Lachho Devi is alive Shyama Devi daughter of Sardar Pandey will not inherit any interest in the property of Sardar Pandey.

12. It has been argued by the learned Advocate of the appellants that Shyama Devi being the reversioner is entitled to inherit the properties of Sardar Pandey after the death Page 0903 of Lachho Devi and this stand of Shyama Devi is not a new stand but the said Shyama Devi had taken similar stand in a suit instituted earlier against Lachho Devi. The learned Advocate of the appellants submitted that in support of this stand, the plaintiffs have brought on record the judgment delivered in Title Suit No. 48/4 of 1955/58 (Ext.6) and the judgment passed by the High Court in First Appeal No. 521 of 1958 (Ext.6/A). It appears that Shayama Devi had taken plea in T.S. No. 48 of 1955 that Lacho Devi being a limited owner was not legally authorised to execute Arpannama and she in capacity of reversioner has a right to challenge Arpannma. It appears that the Division Bench while delivering the judgment in the appeal bearing First Appeal No. 521 of 1958 arising out of Title Suit No. 48/4 of 1955/58, accepted the case of Shyama Devi that Mosstt. Lachho Devi being limited owner was not authorised to execute Arpannama and Shyama Devi being reversioner was entitled to protect her interest in the property. I am also of the view that Shayma Devi the wife of plaintiff No. 1 and the mother of plaintiff No. 2 being reversioner was entitled to protect her interest in the property of Sardar Pandey but she can only inherit on the death of Lachho Devi and not before that. To support my view, I place reliance upon the following decisions (1) (Fateh Bibi etc. appellants v. Charan Das, respondent); (2) Indian Appeals Volume LXXIII Page 187 (Lala Duni Chand and Ors., appellants v. Musammat Anar Kali and Ors.); (3) AIR 1937 Patna 117 (Full Bench) (Pokhan Dusadh, appellant v. Mt. Manoa and Anr., respondents); (4) (Gogula Gurumurthy and Ors., appellants v. Kurimeti Ayyappa, respondent) and AIR 1937 Madras 699 (Full Bench) (Lakshmi Ammal and Anr., appellants v. Anantharama Ayyangar and Anr., respondents). This was the position of law prior to enactment of Hindu Succession Act, 1956 but after the enactment of the said Act, the position of a Hindu widow has completely changed and from the limited owner she became full and absolute owner of the property having power to alienate and transfer the same. Therefore, after coming into force of the 1956 Act, Lachho Devi, who remained alive till 1970, became absolute owner of the property having full and unfettered right to transfer and alienate her property. Thus, I find and hold that on 7.8.1970 Mostt. Lachho Devi had full right to execute the gift deed (Ext.D) with respect to the properties left by Sardar Pandey and accordingly, this point is decided.

Point No. (ii)

13. It has been argued by the learned Advocate of the appellants that the gift deed dated 7.8.1970 (Ext.D) executed by Lachho Devi in favour of Suresh Pandey is not a valid and genuine document and the same was brought into existence by playing fraud upon Mostt. Lachho Devi. He submitted that in support of this fact, the plaintiffs have brought sufficient materials on record but the trial court did not consider all those materials properly. According to the submission of the learned Advocate of the appellants, Lachho Devi was a Pardanashin lady and she was critically ill at the time of execution of the gift deed and so, she was neither in a position to understand the contents of the gift deed nor she was in a position to admit the execution of the gift deed and thus, the gift deed was brought into existence by playing fraud upon Lachho Devi. He submitted that in this regard the plaintiffs have examined several witnesses.

14. It is true that in support of this fact that Lachho Devi was a Pardanashin lady and at the time of execution of the gift deed, she was critically ill and was unconscious, the plaintiffs have examined several witnesses but Exts. 11 and 11/A (depositions Page 0904 of lachho Devi in Title Suit No. 48/4 of 1955/58 in T.S. 18/64) show that she was not a Pardanashin lady and she appeared before the court for her evidence without Parda. Likewise, non-production of any medical report with regard to the critical illness of Lachho Devi coupled with the absurd statement of the plaintiff that while Lachho Devi was lying critically ill in her house the plaintiff Nos. 1 and 2 rushed to the house of his son-in-law who had also fallen ill and taking advantage of the absence of the plaintiffs the defendant got the forged gift deed prepared. On the other hand, the evidence of D.W.13 Shakti Prasad Sharma, a postman at Jamui Post Office establishes that just before the execution of the gift deed he had seen Lachho Devi hale and hearty and he had talk with Lachho Devi who had told him that she wanted to withdraw money from her pass-book. He has proved the said pass-book as well as its entry which have been marked Exts. A and B respectively. Thus, the evidence of D.W.13 Shakti Prasad Sharma who is an independent witness as well as Exts. A and B establishes that just before the execution of the gift deed Mostt. Lachho Devi was found hale and hearty and, therefore, I am of the view that the case of the plaintiffs that Mostt. Lachho Devi was critically ill at the time of execution of the gift deed was not true. Moreover, the evidence of D.W.1 Banwari Thakur, D.W.2 Jaleshwar Bhagat and D.W.11 Hirday Narayan who are attesting witnesses as well as identifier and scribe. of the gift deed establishes beyond doubt that the gift deed was validly executed by Mostt. Lachho Devi and the same was not brought into existence by playing fraud upon her.

15. It has further been argued by the learned Advocate of the appellants that the gift deed was not a legal document as the same was not attested by two witnesses, as required under Section 123 of the Transfer of Property Act. His further argument is that there is no evidence on record that the gift deed was accepted by the donee and the same was accompanied by delivery of possession and as such, the same is not a valid document.

16. In reply to the argument advanced on behalf of the appellants' Advocate, the argument of the learned Advocate of the respondent is that the gift deed (Ext.D) has been duly attested by two witnesses, namely, Banwari Thakur (D.W.1) and Jaleshwar Bhagat (D.W.3). His further argument is that it is not necessary that the witnesses who have signed the document must say that they had put their signatures by way of attesting witnesses rather mere putting of their signatures on the gift deed in presence of the executant is sufficient to fulfil the requirements of law which requires that a deed gift must be attested by at least two witnesses. In support of his argument, the learned Advocate of the respondent has placed reliance upon the decisions reported in 1985 PLJR Page 91 (Chhedi Tanti and Ors., appellants v. Srimati Gangati Devi and Ors., respondents). Paragraph 9 of the said decision is relevant on this point which is being quoted below:

Mr. Sheo Kumar Singh, learned Counsel appearing for the respondents, lastly raised the question that the instrument of gift was not duly attested by any witness, as required in law. This point, however, has not been taken in the pleading. He argued that a mere perusal of the deed of gift would signify that the witnesses, who have signed the document do not say that they are putting their signatures by way of an attesting witness. It is, no doubt, true that a deed of gift must be attested by two witnesses and they must affix signature in presence of the executant. This is ordinary a mode of attestation. I have examined the evidence of Page 0905 P.Ws. 5 and 6 who are witnesses to the document and they have stated, in their evidence, that they have signed the document after the execution of the deed of gift by Nathoo and the deed having been accepted by the donee. The statement made by them is, therefore, as required under Section 3 of the Transfer of Property Act. Even though the question was not raised in pleading still I perused the evidence of P.Ws. 5 and 6 and am satisfied that the document has been dully attested as required under Section 123 of the Transfer of Property Act.

17. Thus, the requirement of law as laid down under Section 123 of the Transfer of Property Act is that the gift deed must be attested by two witnesses and mere putting of their signatures on the gift deed by the witnesses in presence of the executant is enough to satisfy the requirements of law. From perusal of the gift deed which is Ext D in the suit, it appears that the same has been attested by two witnesses, namely D.W.1 Banwari Thakur and D.W.3 Jaleswhar Bhagat. It is true that Banwari Thakur is also an identifier but there is no bar that an identifier cannot be an attesting witness. The evidence of D.Ws. 1 and 3 read with the evidence of D.W.11 Hirday Narayan establishes beyond doubt that the gift deed was scribed by D.W.11 Hirday Narayan on the command of Lachho Devi and thereafter Lachho Devi after knowing its contents put her L.T.I. and at her instance, D.W.1 Banwari Thakur and D.W.3 Jaleshwar Bhagat put their signatures. Thus, I am of the view that the evidence on record establishes that the gift deed (Ext.D) was duly executed in accordance with law and the same is a valid document.

18. It has also been argued by the learned Advocate of the appellants that one of the essential ingredients of a valid gift is that the same must be accepted by the donee in the life time of donor and must be accompanied by delivery of possession but there is no reliable evidence on record that the donee had accepted the gift deed and he was put in possession of the gifted property and hence, the gift deed (Ext.D) is not a valid document. In reply to this argument, the learned Advocate of the respondent has argued that under Mohammedan law a deed of gift becomes valid only when it is accompanied by delivery of possession but under Hindu Law delivery of possession is not necessary for a valid and operative deed and mere production of the gift deed by the donee is strong circumstance to believe that the gift was accepted by the donee and he was put in possession of the gifted property. In support of his argument he has placed reliance upon the above referred decision i.e. 1985 PLJR Page 91. Paragraph 8 of the said decision is relevant which is being quoted below:

Coming to the question as to the validity of the deed of gift, I think, the Court below has completely erred in law in deciding the said question. Act defines gift. The ingredients of valid gift are of its being voluntary, without consideration and the same must be accepted by the donee and the said acceptance must be in the life time of the donor. I failed to appreciate how the Court of appeal below injected the concept of delivery of possession for a valid and operative gift. It is true that under the Mahomedan Law a deed of gift becomes valid when there is a declaration of gift by the donor, and acceptance of the gift expressed or implied by or on behalf of the donee, delivery of possession of the subject of the gift by the donor to the donee. Only when these conditions are complied with, the gift is complete under the Mahomedan Law (See Md. Abdul Ghani v. Fakir Jahan Begum - 49 Indian Appeal 195). Under Mahomedan Law, it is essential to the validity of a gift that there should be a delivery of such possession, as the subject of the gift is susceptible to at the Page 0906 time of declaration and acceptance. The taking of possession of the subject-matter of the gift by the donee, either actually or constructively, is necessary to complete a gift. Possession taken at a subsequent date is also sufficient if it was taken with donor's consent. The lower appellate Court, in the instant case, seem to have been obsessed with the principles of Mahomedan Law while dealing with the case of a gift amongst Hindus. The law applicable in the instant case is as laid down in Section 122 of the Transfer of Property Act. Under general law one of the factors showing acceptance is, handing over of the instrument of gift duly executed, attested and registered to the donee. The production of the deed or gift by the donee will be a strong circumstance of delivery and acceptance of the deed of gift (See A.I.R. 1927 Privy Council 42 and A.I.R. 1975 Patna, 140). The acceptance of the deed of gift during the life time of the donor can also be inferred if the donee in token of acceptance, has signed the deed of gift. In the instant case, Sanfo Devi has accepted the gift and in token thereof put her thumb mark on the same prior to its registration. The registered instrument has also been produced by her from her custody which clearly signify acceptance of the deed of gift by the predecessor of the plaintiff. I am, therefore, of the opinion that the deed of gift was valid and operative. The lower appellate Court misdirected itself in law in holding that the deed of gift was invalid as it was not followed by delivery of possession.

19. The evidence on record establishes that the gift deed was produced from the possession of the defendant and there is overwhelming evidence on record including the evidence of the Pleader Commissioner (D.W.14, Ram Krishna Singh) that the defendant is in possession of the gifted property which establishes beyond doubt that the gift deed was accepted by the donee (defendant) and the donee was also put in possession of the gifted property. All these facts establish that the gift deed was a valid document.

20. Lastly, it was argued by the learned Advocate of the appellants that the evidence and the document on record shows that in the year 1955 Mostt. Lachho Devi had executed Arpannama in the name of deity with respect to a portion of the suit property which was challenged by Shyama Devi, the wife of plaintiff No. 1 and the mother of plaintiff No. 2 in Title Suit No. 48/4 of 1955/58 (the judgment passed in the said title and suit as well as the judgment passed in the appeal arising out of the said title suit have been brought on record which are Exts. 1 and 1/A). The learned Advocate argued that Section 14 of the Hindu Succession Act provides that after coming into force of the Hindu Succession Act, a limited owner becomes absolute owner of the property only when she is in possession of the property on that date. His argument was that after execution of Arpannama by Mostt. Lachho Devi in the year, 1955 she became dispossessed from the suit property and on the day of coming into force of the Hindu Succession Act, 1956 she was not in possession of the property in dispute and as such, she was not legally entitled to execute the gift deed (Ext.D). In support of his argument, he has placed reliance upon the decision (Daya Singh (dead) through L.Rs. and Anr., appellants v. Dhan Kaur, respondent). I am of the view that this argument of the learned Advocate of the appellants cannot be accepted as there is no case of the plaintiffs that after execution of Arpannama Mostt. Lachho Devi was dispossessed from the suit Page 0907 property or from any portion of the suit property and, therefore, it cannot he held that on the date when Mostt. Lachho Devi executed gift deed (Ext.D) she was not in possession of the property gifted through the gift deed. I, therefore, hold that on this score also the gift deed cannot be said to be illegal document. Thus, on the basis of the above discussions, I find and hold that the gift deed (Ext.D) executed by Mostt. Lachho Devi was a legal and valid document and Mostt. Lachho Devi had full right to execute the gift deed in question. Accordingly, the finding of the trial court in this regard is upheld.

Point No.(iii)

21. As regards non-joinder of the necessary party, I find that there is documentary evidence of the plaintiff himself that Shyama Devi had one more sister, namely, Maharani Devi who had died leaving behind her two sons. Admittedly, the two sons of Maharani Devi have not been made party in the suit and as such, the finding of the trial court that the suit is bad for non-joinder of necessary party appears to be correct and the same is also hereby upheld.

22. In the result, I do not find any merit in this appeal and as such, the same is hereby dismissed on contest with cost. Accordingly, the judgment and decree of the trial court are hereby upheld.