PANKAJ MITHAL, J. - (1.) THE undisputed facts giving rise to this second appeal are that one Ram Das was having lease hold rights in the suit land which had devolved upon his son Sunder Lal who subsequently got it free hold. The said Sundar Lal executed a gift deed dated 27.12.1990 of the said land/house in favour of his son Sambhoo Dayal Dubey and his wife Smt. Pushpa Devi. He thereafter transferred the same very property to Nirmal Kumar Jain vide sale deed dated 9.12.1997. Before making the sale deed he instituted a suit for cancellation of the gift deed dated 27.12.1990 on the ground that it was never acted upon and was not accepted by the donees i.e., his son Sambhoo Dayal Dubey and his wife Smt. Pushpa Devi. The suit was decreed by the Court of first intance which decree has been affirmed in appeal.
(2.) AGGRIEVED by the judgments, orders and the decree passed by the Courts below cancelling the gift deed dated 27.12.1990 defendants Sambhoo Dayal Dubey and Smt. Pushpa Devi have preferred this second appeal. I have heard Sri Piyush Misra, learned Counsel for the defendant appellants at length and Sri K.K. Dubey learned Counsel for the respondent.
(3.) SRI Misra has made only one submission that in view of the admitted possession of the defendant-appellants over the property in dispute, it can not be said that the gift deed was not accepted. He has relied upon a Division Bench decision of this Court in Mt. Anandi Devi v. Mohan Lal and others AIR 1932 Alld. 444 wherein it has been ruled that acceptance of gift may be express or implied and the possession of donee is proof of acceptance. In reply to the above argument it has been submitted that in view of the pleadings and the evidence on record the above implied acceptance of the gift deed is not established.;