1 APPEAL FROM APPELLATE DECREE NO.33 OF 1996 ----- AGAINST THE JUDGEMENT DATED 20.9.1995 AND DECREE DATED 4.11.1995 PASSED BY THE DISTRICTJUDGE WEST CHAMPARAN BETTIAH IN TITAL APPEALNO.53 OF 1992. ------- RADHEY SHYAM PRASAD …… APPELLANT VERSUS MOHAN LAL PRASAD & ORS RESPONDENTS -------- FOR THE APPELLANT : NONE FOR THE RESPONDENTS : MR. KESHAV PANDEY , ADVOCATE P R E S E N T THE HON'BLE MR. JUSTICE NAVANITI PRASAD SINGH The plaintiff is the appellant who has lost in both the courts below. He has instituted the suit ostensibly for declaring the gift dated 4.12.1989 executed by his father in favour of plaintiff’s nephew to be forged fabricated and having no binding affect on the plaintiff. None has appeared to press this application on behalf of the plaintiff appellant. Respondents have appeared. Respondents have placed before this court memorandum of partition. It is on the basis of the aforesaid memorandum of partition that the plaintiff urged that the property which fell to the share of his father/ mother was with limited ownership right and was not absolute devolution of property. In the memorandum it is clearly stated in schedule I that the property mentioned in schedule I was exclusively allotted to the share of the father and mother of the plaintiff who were to be 16 annas owner thereof but at the end of the memorandum it is noted that whatever Navaniti Pd. Singh J, 2 property allotted to the share of the father and mother of the plaintiff is left at the time of their death that would devolve on the three sons equally. On the basis of this the plaintiff appellant submits that his father and mother had no right to gift the property and thus the gift deed was invalid and it is in view of this fact that the substantial question of law has been framed thus; “Whether the lower appellate court was legally justified in upholding the validity of deed of gift dated 4.12.1989 executed by Ganedsh Ram in favour of appellant no.2 though as per memorandum of partition he was made a limited owner of the said property till his life time”. In my view the question as framed has to be reframed as under; “Whether in view of the memorandum of partition Ganesh Ram not being full owner of the property could make a valid gift thereof?” The answer to the question has to be against the plaintiff appellant. Schedule I to Ext.3, the memorandum of partition clearly confers absolute title to the property allotted to the share of the father and mother of the plaintiff. It gives them 16 annas right which means absolute ownership. When the memorandum at the end talks of any property left to the share of the father and mother after their death it only refers to the reminder of the estate. In the present case we are not concerned with the reminder of estate as the gift was made during the life time of Ganesh Ram. He was fully competent to make the gift as he was 16 annas owner thereof. That being the position he was 3 full owner of the gifted property and the gift was valid in law. The question so framed is answered accordingly and the appeal is thus dismissed. (Navaniti Prasad Singh, J) Patna High Court, The 3rd of July 2008, (NAFR) Rahman/