- (1.) Heard learned counsel for the parties. This second appeal was allowed on 20.2.2006. Against the said judgment and decree special leave petition was filed before the Supreme Court which was converted into Civil Appeal No. 5197 of 2007. The Supreme Court allowed the appeal on 14.11.2007 on the ground that questions of law had not been framed and remanded the matter to the High Court for a fresh hearing. Thereafter amendment application was filed on 15.12.2008 containing five substantial questions of law. The application was allowed on 30.1.2009. On 13.12.2011, following order was passed on the order sheet: Amendment application filed on 15.12.2008 has formally been allowed on 30.1.2009. It is further clarified that this second appeal will be heard on the substantial questions of law A, B, C, D and E given in the said amendment application. List in the next cause list. The questions of law mentioned in the Amendment Application filed on 15.12.2008 are quoted below: (A) Whether the lower appellate court was correct in taking the view that inspite of the fact that the plaintiff was minor (2 years old) at the time of execution of the Gift Deed in his favour by his natural father, express acceptance of the Gift was necessary in order to make it a valid Gift? (B) Whether in the facts and circumstances of the present case, the lower appellate court ought to have treated the Gift as deemed accepted and acted upon since Ram Singh, the father of the plaintiff, himself was the guardian and had himself executed the Gift Deed in favour of his minor son (Plaintiff) ? (C) Whether the lower appellate court was justified in dismissing the Suit in spite of arriving at a conclusion that the Suit so far as the relief of cancellation of the impugned Sale Deed is concerned is not hit by the bar imposed by Section 49 of the Consolidation of Holdings Act? (D) Whether the conclusion drawn by the lower appellate court that the suit is barred under Section 49 of the U.P. Consolidation of Holdings Act since it involved the question of title to the disputed agricultural land, is correct in view of the fact that plaintiff was minor during consolidation operations and his guardian, his real father, was in collusion with Phool Chand, Vendee of his father? (E) Whether the lower appellate court was justified in allowing the appeal treating the Gift Deed as invalid and Suit barred under Section 49 of the U.P. Consolidation of Holdings Act without discussing, dealing and discarding the evidence relied upon by the trial court for arriving at a contrary conclusion?
(2.) This second appeal arises out of Original Suit No. 358 of 1973 instituted by Ved Prakash minor son of Ram Singh through his guardian Shri Naresh Chand, maternal uncle. In the suit father and mother of the plaintiff minor, i.e., Ram Singh and Smt. Prakasho were impleaded as defendant Nos. 2 and 3. The defendant No. 1 was Phool Chand. It was stated in the plaint that Ram Singh father of plaintiff Ved Prakash had executed registered gift deed of the agricultural land in dispute in his favour on 28.2.1962 when Ved Prakash plaintiff was only two years old. Ram Singh after about two and half years of the Gift Deed, Le., on 3.8.1964 executed a registered sale deed of the agricultural land in dispute in favour of Phool Chand, defendant-respondent No. 1. Through the suit cancellation of the said sale deed had been sought. Suit was decreed on 2.6.1975 by City Munsif. Saharanpur and sale deed dated 3.8.1964 was cancelled. Against the said decision defendant-respondent No. 1 Phool Chand filed Civil Appeal No. 226 of 1975 which was allowed by Vth Additional District and Sessions Judge, Saharanpur on 19.2.1976 through which judgment and decree passed by the trial court was set aside and suit for cancellation of the sale deed was dismissed hence this second appeal. The lower appellate court held that: It could not be established that the alleged Gift Deed was accepted on behalf of donee, no valid Gift Deed was granted in his favour under the Deed (Exhibit-2) it must also be held that the Gift Deed was not acted upon and given effect to by the donor who on 3.8.1964 executed the impugned sale deed in respect of land in suit in favour of the defendant-appellant. Not only that in the mutation proceedings taken out by the defendant-appellant on the basis of the impugned sale deed executed in his favour defendant Ram Singh stated before the A.C.O., Saharanpur that in his place the name of his vendee namely Phool Chand may be mutated over plots in question of which he had been delivered possession. Lower appellate court further held that the suit was filed after nine years of execution of the sale deed even though maternal uncle (mama) of the plaintiff was aware of the same since its execution and all these facts further re-enforced the argument that the Gift Deed was in fact a sham transaction and that it was never acted upon.
(3.) Learned counsel for the appellant has placed strong reliance upon the authority of the Supreme Court in K. Balakrishnan v. K. Kamalam and others, 2004 AIR(SC) 1257, (as was done at the earlier stage when this appeal was allowed).;