- (1.) S. K. Phaujdar, J. This second appeal is directed against the judgment and decree dated 11-12-1980 passed by the First Additional District Judge, Gorakhpur, in Civil Appeal No. 142 or 1979, whereby the Court below was pleased to dismiss the first appeal of the present appellant. The aforesaid first appeal was filed against the judgment and decree of Munsif, Gorakhpur, in Original Suit No. 102 of 1976 in stituted by the present appellant which was dismissed on 22-3-1979.
(2.) THE said suit was filed by the present appellant against the defendant-respon dents for cancellation of a deed of gift dated 9-5-1968 allegedly executed by the husband of the plaintiff- appellant covering the property as detailed at the foot of the plaint. THE plaintiff had alleged in the plaint that her husband Ram Sahu was the owner of the property in dispute and was in possession thereof. THE plaintiff and her husband and only two daughters. THE husband of the plaintiff had grown old and was under financial constraints to get the daughters married. He requested defendant No. 2 that defendant No. 1 be married with the elder daughter of the plaintiff. THE defendant No. 2 demanded that such marriage would be possible if the plaintiffs husband executed a Will in favour of his daughter for the house in suit. Under compulsion, the plaintiff's husband had signed a deed dated 9-5-1968 and the mar riage was performed. This marriage, however, was not a happy one. THE daughter of the plaintiff was murdered by her husband on 12-11-1970. A report was made. THE deed that was scribed was in fact not a Will but a gift and was fraudulently obtained under undue advantage of the financial constraints of the husband of the plaintiff. THE valuation of the property allegedly gifted was show far less than its actual value. For all these reasons, the plaintiff filed the suit for cancellation of the deed dated 9-5-1968. The defendant contested the suit and filed a written statement. It was stated therein that the plaint allegations and averments were false. It was contended that as Ram Sahu had only two daughters, he sincerely wished that he would give one house each to his daughters by way of gift. Consequently, when the marriage of the first daughter was settled, he made a gift of the house in dispute in favour of his daughter Savitri and her husband-to-be. The gift was accepted. After marriage, they started living in the said house. There was no fraud or undue influence in the execution of the gift-dead. The plaintiff Gulaichi Devi mother of Savitri, was also living in the house as per terms of the deed. The death of Savitri could not have affected the gift in any manner. The trial court framed several issues touching the alleged deed and touching the maintainability of the suit. The suit was held undervalued and the court fee paid was held insufficient. On the question of the gift, the trial court was of the view that the gift-deed dated 9-5-1968 was not obtained by fraud or undue influence and was not bad for violation of the provisions of the Dowry Prohibition Act (in short, DP Act ). The other issues were also decided in favour of the defendant and the suit was held to be barred by limitation, estoppel and acquiescence and it was further held that the plaintiff was not entitled to any relief.
(3.) IN the first appeal, the court framed five points for decision. It was held that the deed was not violative of the provisions of the D. P. Act and that the defendant had acquired good title under the gift- deed which was accepted by him and the deed in question was not a will deed but was a gift-deed only. The appellate court, how ever, found that the suit was not barred by limitation but it was barred on the principle of estoppel and acquiescence accordingly, the lower court's judgment and decree were confirmed. In the present second appeal, the respondents were noticed but they did not choose to appear and the matter was heard ex-pane. The appeal was admitted only on one substantial questions of law as per order dated 4-9-1981. The question was : "whether the transaction dated 9-5-1968 was hit by the provisions of Section 5 of the DP Act, 1961 -. " The learned counsel, however, advanced his arguments on the ques tion of limitation and on the question of acceptance of the gift by the donee in addition to the substantial question of law that was framed at the time of admission. As indicated above, the lower appellate court had come to a finding that the appeal was not barred by limitation. As such, the plaintiff- appellant need not and cannot raise the question of limitation. The other points raised by the learned counsel was on a finding of fact that the gift was accepted by the donee. This finding of fact may not, therefore, be allowed to be agitated or canvassed in the second appeal. This Court is, therefore, confronted with only one question and that is the substantial question of law as framed in the order dated 4-9-1981.;