IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.3 of 2008 Dulhin Dulari Devi, D/o Late Akaloo Kohar, W/o Ram Kumar Kohar, Resident of village- Amawalia, P.S. Karahgar, Dist. Rohtas, At present Resident of village- Mokaram, P.S. Kudra, District- Bhabua. ..Plaintiff-Respondent-Appellant. Versus 1. Most. Jiuti Kuer, W/o Late Akaloo Kohar, Resident of Village- Mokaram, P.S. Kudra, Dist. Bhabhua. 2. Sonamati Devi, D/o Late Akaloo Kohar, W/o Kashi Kohar, Resident of Village- Ghataon, P.S. Kudra, at present village- Mokaram, P.S. Kudra, District- Kaimur at Bhabua. 3. Bindu Kohar, S/o Kashi Kohar. 3(A) Dwarika Kohar, S/o Kashi Kohar, Resident of village- Ghatoan, P.S. Kudra, at present Resident of village- Mokaram, P.S. Kudra, Distt. Kaimur at Bhabua. ..Defendants-Appellants-Respondents. For the Respondent: Mr. Dineshwar Tiwary, Advocate. ---------------------------------- 7 21.12.2011 Heard Mr. Ravi Shankar Sahay, learned counsel appearing on behalf of the appellant. This appeal has been filed by the plaintiff against the judgment of reversal allowing the appeal by the defendants. The suit was for declaration that the deed of gift dated 20.07.1983 executed by Most. Jiuti Kuer defendant no.1 in favour of defendant no.2 was illegal and fraudulent document and not binding upon the plaintiff and the prayer was made to set aside the same. The plaintiff claimed the suit property to be property of her father and asserted that after the death of her father she had also acquired interest in the property and on this basis she claimed that the execution of the gift deed by her mother with regard to the suit property in favour of the defendant no.2, son of defendant no.3 was not a valid document. Contesting the assertions of the plaintiff, the defendants have stated that the suit property was the self acquired properties of the defendant 2 no.1 (mother of the plaintiff), who acquired the same by purchase by registered sale deed dated 29.06.1960 after the death of her husband and also by settlement from the ex-landlord. In view of the rival cases of the parties, the core question which arose for determination in the suit was as to whether the suit property was the self acquired property of the defendant no.1 or the property belonging to the father of the plaintiff over which after his death his heirs had succeeded. The Trial Court after considering the evidence of the parties, in view of the pleadings and submissions, came to the finding that the gift deed in question was not a valid document and the defendant no.2 has not acquired any right over the gifted property on that basis. It has also been found that the plaintiff has got a share in the suit property and on this basis also the gift deed has been found not to be a valid document. In appeal, however, the appellate court re-appraised the evidence of the parties and considered the submissions made by the learned counsels for the parties. Thereafter, the appellate court has recorded the crucial finding that Akaloo Kohar, the father of the plaintiff and the husband of the defendant no.1, was not alive in the year 1960. Further after this finding, the appellate court has also concluded that the property, subject matter of the gift deed in question, is the self acquired property of the defendant no.1. The aforesaid findings have been recorded on the basis of the documentary as well as oral evidence of the parties. 3 Learned counsel appearing on behalf of the appellant has submitted firstly, that the finding regarding the acquisition of property by Jiuti Kuer (defendant no.1) is not established and the same cannot be treated to be her exclusively property. It has been further contended that in view of the deposition of the defendant no.1, the year of settlement comes to sometime in 1959-1960 and obviously after vesting of the jamindari till then, the ex-landlord could not have made the settlement. It has also been urged by the learned counsel that the gift deed in question has not been attested by two witnesses which is mandatory under Section 122 of the T.P. Act for its legal validity and further there is also no evidence that it has been accepted by the donee. As such on the basis of these submissions, the learned counsel has urged that substantial question of law arise for consideration in this appeal. After the perusal of the impugned judgment and consideration of the submissions on behalf of the appellant, it appears that the core question regarding the year of death of the father of the plaintiff as well as the nature of the acquisition by the defendant no.1 has been considered by the appellate court, and the evidence of both the parties in this regard have been elaborately discussed. The appellate court below has come to the finding on the basis of Exhibit-B dated 29.06.1960 in which it has been specifically mentioned that Jeuti Kuer is the widow of Akaloo Kohar. Further the appellate court has also taken notice of the date of settlement, which has been assessed to be of the 4 year 1959-60 by the Trial Court, and has concluded that the defendant no.1 was a pardanasheen lady and the year of settlement in her evidence should not have been considered with arithmetical exactness. On the basis of the aforesaid main considerations, the appellate court has held that the property subject matter of gift deed in question exclusively belonged to the defendant no.1 who had the right to execute the gift deed in favour of the defendant no.2. In view of the aforesaid finding of fact by the appellate court, the contention of the learned counsel with regard to the absence of attestation by two witnesses on the gift deed and its acceptance by the donee looses its relevance because the plaintiff, then, will have no right to assail the gift deed on that basis, having no right or interest in the gifted property. The crucial issues between the parties have been concluded by the findings of fact recorded by the appellate court on the basis of its own appreciation of evidence and there is no illegality and perversity in the findings. As such, there is no substantial question of law arising for consideration in this appeal, which is accordingly, dismissed. Md. Ibrarul ( V. Nath, J.)