- (1.) THE appellant-plaintiffs have challenged the legal validity of the judgment dated 24.11.2005 passed by the Civil Judge (Senior Division), Rajsamand, whereby the Civil Judge had dismissed the suit preferred by the plaintiff- appellants. THEy have also challenged the legal validity of the judgment dated 22.2.2012 passed by the District Judge, Rajsamand, whereby the learned Judge has confirmed the judgment dated 24.11.2005.
(2.) BRIEFLY, the facts of the case are that the plaintiff- appellant-plaintiffs Nos. 1 to 6 had filed a suit in the representative capacity for being given the possession of the Chabutri before the learned trial court. According to them, there is a house, and a Chabutri situated next to the temple of Hinglaj Mataji Mandir. The Hinglaj Mataji Mandir is a deity worshipped by the Khatri community. Vide gift-deed dated 1.12.1992. Smt. Nathi Bai had donated the Chabutri, and the house to the temple. However, respondent-defendant No.1, Hari Shanker, had encroached upon the said property. Therefore, they had filed the suit for restoration of the property, and for mesne profit. The respondent-defendants had filed a written statement, wherein they have denied the averments made in the plaint. The learned trial court had framed eight issues including the issue of relief. In order to buttress its case, the appellant- plaintiffs had examined four witnesses, and had submitted few documents. On the other hand, the respondent- defendants had examined three witnesses. After going through the oral and documentary evidence, the learned trial court dismissed the suit vide judgment dated 24.11.2005. The appellant-plaintiffs filed a first appeal before the learned Judge. However, vide judgment dated 22.2.2012, the learned Judge dismissed the first appeal. Hence, this second appeal before this Court. Mr. C.S.Kotwani, the learned counsel for the appellant-plaintiffs, has vehemently contended that both the courts below have failed to consider the fact that even the defendants had admitted the existence of gift-deed dated 1.12.1992. Moreover, Madan Singh (P.W.3), the person who had attested the gift-deed, as a witness, had clearly deposed before the learned trial court that the gift- deed was duly prepared by Smt. Nathi Bai. Hence, according to the learned counsel, the two courts below were unjustified in dismissing the suit on the ground that there is a lack of evidence on the point of acceptance of the gift. Since the gift was made by Smt. Nathi Bai to a temple, it should be deemed to be accepted by the deity. Heard the learned counsel for the parties, and perused the impugned judgments. Section 122 of the Transfer of Property Act, 1882 defines the term "Gift" as under: "Gift" defined.- "Gift" is the transfer of certain existing moveable or immoveable 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. Acceptance when to be made- Such acceptance must be made during the lifetime of the donor and while he is still capable or giving. If the donee dies before acceptance, the gift is void. A bare perusal of the said provision clearly reveals that a person is required to first prove that the gift was accepted by the donee or any one of his behalf. Secondly, that acceptance must be made during the lifetime of the donor and while he/she is still capable of giving. If in case the donee dies before acceptance, the gift is void.
(3.) ADMITTEDLY, the respondent-defendant No.1 has admitted that gift-deed dated 1.12.1992 was, indeed, made by Smt. Nathi Bai. Moreover, Madan Singh (P.W.3) has proven the said gift-deed. Further, the learned trial court has also noticed that the gift-deed was, indeed, made by Smt. Nathi Bai. However, both the courts are of the opinion that mere proof of the gift-deed would not substantiate the plaintiff's case. For according to Section 122 Succession Act, the plaintiff was further required to prove the fact that the gift had been "accepted". A bare perusal of the impugned judgment clearly reveals that the appellant-plaintiffs have not been able to submit an iota of evidence on the point of "acceptance". The plaintiff has examined neither Smt. Nathi Bai, nor the Pujari of the temple to establish the factum of "acceptance". Although the learned counsel for the appellant has contended that the temple is small one, being run by the Khatri community, therefore, it does not have a Pujari. However, the said contention is hardly acceptable. For, it is the Pujari, who looks after the deity, who is enshrined in the temple. In the present case, the Pujari of the temple has not been examined as a witness to prove the fact that the gift was "accepted" on behalf of the deity, who happens to be a minor. The learned Judge has also noticed the fact that according to the gift deed, the property was gifted through "Panchas" of the Khatri community. However, the appellant-plaintiff have not pleaded that they are one of the "Panch" of the community. They have merely asserted that they were authorised by the community for presenting the suit. Since, an essential element of a valid gift is conspicuously missing in the present case, the learned courts below were legally justified in dismissing the suit. Hence, this Court does not find any illegality or perversity in the impugned judgments. Moreover, the question whether a valid gift was made by Smt. Nathi Bai or not? The issue, whether it was validly accepted or not are pure questions of fact. A second appeal arises only when it raises substantial question of law. The learned counsel has not been able to point out any perversity or illegality in the impugned judgments. Since this second appeal lacks any substantial question of law, it is devoid of any merit. It is, hereby, dismissed. ;