TIN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.251 of 2010 Most.Partirajo Kuwar & Ors. Versus Dulhin Brij Raj Devi ---------------------------------- 5 24-8-2011 Heard the learned counsel appearing on behalf of the appellants and the learned counsel appearing on behalf of the respondent. This appeal has been filed against the judgment and decree dated 17th March, 2010, passed by the Additional District Judge, F.T.C.III, Kaimur at Bhabhua in T.A.No. 28 of 2009/102 of 2009 affirming the judgment and decree dated 24-3-2009 passed by Subordinate Judge III, Bhabhua in T.S.No. 55 of 1990. The original plaintiff, who was the widow of Nageshwar Singh(deceased) had filed the suit for declaration that the gift deeds dated 2-1-1989 and 3- 1-1989 are forged , inoperative and fraudulent document and not binding upon the plaintiff and the further prayer was to carve out 1/3rd share of the plaintiff in the suit property. In short, the plaintiff has averred in the plaint that her husband Nageshwar Singh, who had an interest in the suit property by being a co-parcener , had died leaving behind the plaintiff as his heir. However, the plaintiff came to know that the defendants had prepared a forged and fabricated 2 document purporting to be the gift deed executed by Nageshwar Singh in their favour and she has filed this suit for the above mentioned relief against the gift and thereafter for partition. The original plaintiff, namely, Ashloka Kunwer died during the pendency of the suit and she had executed a gift deed dated 19-4-1993 in favour of Brij Raj Devi with regard to her share in the suit property. The substitution was done and Brij Raj Devi was allowed to pursue the suit. However, in view of the challenge by the defendants with regard to the gift deed dated 19-4-1993 in favour of Brij Raj Devi, the court below left the question open for the purpose of deciding it at the time of final hearing of the suit. The trial court after considering the pleadings and the evidence of the parties came to the finding that the alleged gift deed dated 2-1-1989 executed by Nageshwar Singh in favour of the defendants was not a valid document and no title on that basis was transferred to the defendants. The trial court thereafter decreed the suit. The appellate court below, after considering the submissions made by the parties before it, examined the validity of the gift deed on the basis of evidence led by the 3 parties and came to the finding that the gift deed was not a legal and genuine document. Consequently, the appellate court concurred with the finding of the trial court and affirmed the decree by dismissing the appeal. The learned counsel appearing on behalf of the appellants in support of the appeal has submitted that the present plaintiff Brij Raj Devi, who is the donee of the original plaintiff Ashloka Kunwer on the basis of the gift deed dated 19-4-1993 could not have been substituted in the suit as the said gift deed was not a valid and genuine document. No other submission has been made by the learned counsel appearing for the appellants. The perusal of the judgment of the trial court shows that this issue with regard to the substitution of Brijraj Devi in place of original plaintiff Ashloka Kunwer had been considered while considering issue of maintainability of the suit. The trial court had taken notice of the fact that no evidence had been produced on behalf of the defendants to support and substantiate their case regarding invalidity of the gift deed dated 19-4-1993. The trial court has further repelled the submission/prayer of the defendants to get themselves substituted in place of the 4 original plaintiff and has held that the present plaintiff Brij Raj Devi has been rightly substituted in place of deceased original plaintiff Ashloka Kunwer. The perusal of the judgment of the appellate court below does not show that any objection in this regard had been raised by the defendants, who were the appellants before that court and as such there was no occasion for the appellate court to consider this issue. In any view of the matter, the substitution of Brij Raj Devi on the basis of registered gift deed in her favour by the original plaintiff Ashloka Kunwer after her death is legal and in accordance with the provisions of the Code of Civil Procedure. There does not appear to be any substantial question of law involved in this appeal. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)