1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.314/2010 PRABHAKAR GHANSHYAMJI KHEWLE & ORS ..VS..S AU. SHANTABAI MANIRAO URKUDE & ANOTHER Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 23 /7/2010 Heard Shri R.L. Khapre, the learned counsel for the appellant. The appellants are the original plaintiffs. A suit was filed by the plaintiffs for a declaration that a gift executed by his father in favour of defendant Shantabai was null and void and his father had no right or authority to give the suit property to defendant Shantabai. Shantabai is the sister of the appellants / plaintiffs Prabhakar and Purushottam. It was the case of the plaintiffs that the suit property and the other properties were the ancestral properties and their father Ghanshyamji had no right to execute a gift deed in favour of defendant Shantabai. It was pleaded by the plaintiffs that gift deed was executed with a view to help her to obtain a loan from the bank and also to save the properties of Ghanshyamji from the clutches of the Ceiling Act. Defendant – Shantabai denied the claim of the 2 plaintiffs. It was the case of the defendant that Ghanshyamji was the exclusive owner of the suit property as the said property was allotted to his share in a partition effected in the year 1970. According to the defendant the gift deed executed by her father in her favour on 24.3.1983 was valid. The defendant sought for the dismissal of the suit. The trial court on an appreciation of the evidence on record held that the plaintiffs had succeeded in proving that the gift deed executed by their father on 24.3.1983 in favour of the defendant was null and void. The trial court held that the defendant had failed to prove that the property gifted by her father in her favour in the year 1983 fell to his share in the partition of 1970. According to the trial court the defendant was not able to prove that there was a partition of the properties in the year 1970. The first appellate court on a re-appreciation of the evidence on record, reversed the findings recorded by the trial court and held that the suit property was the exclusive property of Ghanshyamji which was allotted to him in the partition of the year 1970. The first appellate court then held that the gift executed by Ghanshyamji in favour of the defendant in the year 1983 was valid as Ghanshyamji was entitled to execute the gift deed of his exclusive share in the property, in favour of the defendant. On a reading of the judgment of the trial and the first appellate court it appears that the first appellate court has rightly appreciated the evidence on record to recored 3 the aforesaid findings of facts. The findings recorded by the first appellate court are based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. In the result, the second appeal fails and is dismissed with no order as to costs. JUDGE SMP.