IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.309 of 2005 1. Mostt. Lacho Kuer. 2. Pawan Kumar Saini. 3. Pramod Kumar Saini. All sons of Late Kashi Nath Ram. All resident of Mohalla Akhauri, P.O. + P.S. Jagdishpur, Dist. Bhojpur. ---------Appellants Versus Chinta Devi daughter of late Girija Devi @ Girija Kuer, at present residing at Mohalla Akhauri (Ward no.5) Jagdishpur, P.O. and P.S. Jagdishpur, Pergana Behea, District Bhojpur. (Defendant---Appellant)------Respondent ----------- 14 16.4.2009 Heard counsel for the appellant and counsel for the respondent. In the opinion of this Court, the impugned judgment of the lower appellate court remitting the matter back after setting aside the judgment of the trial court and framing three additional issues cannot be faulted with in terms of the Order 41 Rule 23 of the Code of Civil Procedure. It is not in dispute that the plaintiff- appellant had filed a suit for declaration that the deed of cancellation of a deed of gift dated 3.3.1997 seeking to revoke an earlier registered deed of gift dated 16.3.1990 was void and inoperative. The dependant respondent to this appeal, had not only contested the suit but had taken specific plea that the deed of gift dated 16.3.1990 was 2 itself void and inoperative and as such, its being rescinded or cancelled by a subsequent deed dated 3.3.1997 was not in any way unjustified. Despite a clear averment made to this effect by the defendant-respondent, the trial court did not frame any issue as with regard to the validity of the deed of gift dated 16.3.1990 and it came to frame only one relevant issue namely D;k oknh bl ?kks’k.kkRed vkKfIr ds ikus dk gdnkj gS fd fookfnr nku i= fujlu foys[k fnukad 3-3-1997 voS/k] diViw.kZ] “kwU;] oknh ij vok/;dkjh rFkk izfr fnuh ds LoRo o vf/kdkj foghu gS\. As a matter of fact, the trial court even after noticing the specific plea of the defendant as would be apparent from reading of the judgment of the trial court in paragraph nos. 23 to 26 had brushed aside the plea of the defendant on the ground that the only issue involved was with regard to the validity and correctness of the deed of cancellation dated 3.3.1997. This aspect of the matter, thereafter, was raised before the lower appellate court. It has gone into all the aspects of the matter 3 and has found that the moment the defendant had taken a plea about the deed of gift dated 16.3.1990 itself to be bad on the ground there being no permission of the Consolidation Authority or for other reasons, the trial court was required to frame specific issue as to whether the deed of gift dated 16.3.1990 was void and/or inoperative or had conferred any right on the plaintiff. In that view of the matter, if the lower appellate court after considering the evidence on record and findings had come to a conclusion that the three additional issues were required to be framed namely:- 1. Whether the gift deed dated 16.3.90 is legally valid which has been executed without the permission of the Consolidation Officer when the Act was inforced. 2. Whether the gift deed dated 16.3.90 is valid with acceptance of the donee. 3. Whether the witnesses are attesting witnesses or marginal witnesses on the deed of gift dated 16.3.90. this Court would not find any error in such approach of the lower appellate court. It has to be noted that the deed of gift dated 16.3.1990 has been cancelled by the mother on 4 the ground that the son as per stipulation made in the deed of gift dated 16.3.1990 failed to maintain her and thereby the entire property transferred by way of gift had left her with no means of sustenance. In that view of the matter, even if the spirit of Section 128 of the Transfer of Properties Act is taken into account as the whole property of the mother had been given to the son, the plaintiff-appellant-son was personally liable to maintain the mother which would be only debt for an old lady. Thus after taking into account all these aspects, this Court would find that the additional issues as framed by the lower appellate court needs to be gone into by the Trial Court for adjudicating the main issue involved in the suit. Accordingly, this Court would not find any reason to interfere with the impugned judgment of the lower appellate court. This appeal thus being devoid of any merit must be and is hereby dismissed. Rsh (Mihir Kumar Jha, J.)