S.U.Khan - (1.) -Heard learned counsel for the parties.
(2.) THE dispute in the instant writ petition relates to the rights of the parties to succeed to the agricultural land of Ram Adhar who died on 9.12.1981. Petitioners are sons of Dhunnu who was real brother of Ram Adhar. Petitioners claimed that firstly Ram Adhar had executed a registered gift deed nine days before his death i.e., on 30.11.1981, in their favour and secondly even in the absence of the gift deed they inherited the property after the death of Ram Adhar. Respondents 1 to 3 are sons of Bansh Raj. THEir claim is that their deceased mother Chandgudi was daughter of Ram Adhar and Ram Adhar did not execute any gift deed on 30.11.1981 in favour of the petitioners hence respondents inherited the agricultural property in dispute belonging to Ram Adhar after the death of Ram Adhar. Firstly, the matter was agitated in mutation proceedings where it was decided in favour of respondents. Thereafter petitioners filed three title suits for declaration under Section 229B of U.P.Z.A. and L.R. Act, which were registered as Suit Nos. 4/518, 5/519 and 6/520, Kishun and others v. Hari Naraina and others. All the suits were consolidated and decided by Sub Divisional Officer, Aata, Kasya District Deoria. The Sub-Divisional Officer/trial court decreed the suits on 24.5.1984 deciding both the points in favour of the petitioners. Trial court held the gift deed to be proved and valid and further held that Chandguddi mother of respondents was not the daughter of Ramadhar as Ramadhar had only one daughter who had died at the age of 11 years. Against the judgment and decree dated 24.5.1989, respondents in this writ petition filed three appeals being Appeal Nos. 528/D, 567/D and 568/D of 1989. Additional Commissioner (Administration) allowed all the appeals through judgment and decree dated 25.10.1996. Against the said judgment and decree petitioners filed three second appeals before Board of Revenue being Second Appeals Nos. 3, 4 and 5 of 1996-97, Shri Kishun v. Hari Narain. Board of Revenue dismissed all three appeals on 2.6.2004 hence this writ petition. Learned Commissioner while allowing the appeals of the respondents held that the marginal witness of the gift deed dated 30.11.1988, i.e., Pauhari Saran could not properly prove the gift deed and there were several contradictions in his statement. It was also observed that the said witness did not even know the name of the writer of the deed and it was stated by him that he was at his house and was called therefrom for attestation and that he did not know anything regarding litigation in between Shri Kishun and Hari Narain (meaning thereby the litigation in respect of mutation). Appellate court also observed that the said witness did not identify the executant before the Sub-Registrar. The appellate court also held that even if it was assumed that Ram Adhar had no issue then his nephews would have inherited the property hence there was no need to execute the gift deed. Appellate court also found that Ram Adhar was ill at the time of execution of the gift deed and died within ten days therefrom. Appellate court also held that in mutation proceedings same Courts had recorded finding that gift deed was not proved and the said findings had been approved by the Board of Revenue hence the said finding could not be brushed aside. First appellate court also found that the donor i.e., Ram Adhar did not accept the gift during his life time.
(3.) UNDER Section 122 of the Transfer of Property Act, it is provided that : "Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee." Such acceptance must be made during the life time of the donor and while he is still capable of giving. It has been held by Division Bench authority of Patna High Court in AIR 1948 Pat 130, that mere possessions of the gift deed by the donee will not be conclusive proof of the fact that the gift deed was accepted by him. In AIR 1956 Bhopal 66, it has been held that the mere execution of a registered deed of gift cannot prove the consent or knowledge of the donee when there is nothing to show that the donee witnessed the deed of gift or was present at the time of registration. In this regard reference may also be made to AIR 1974 Punj 130 and AIR 1995 Mad 415 (DB), wherein it was held that the signature of the donee at the time of execution and his presence at the time of its registration are sufficient to prove acceptance.;