Ram Ekbal SinghversusSmt. Deopari Devi

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                          SECOND APPEAL No.89 of 1989
     ======================================================
     Sri Bindeshwar Prasad Singh Son of Late Ram Ekbal Singh, Resident of
     Village - Nawadiha, P.O. Saidpur, P.S. Sonapur, District- Saran.

                                          ... ... Defendant-Appellant-Appellant

                                      Versus

1.   Smt. Deopari Devi D/o late Shri Abhay Narayan Singh, Wife of Shri
     Raghunath Singh, Resident of Village Masarh, Police Station Udant Nagar,
     District Shahabad now Bhojpur.
2.   Smt. Rampari Devi D/o late Abhay Narain Singh, Wife of Shri Brahmdeo
     Singh, Resident of Village Bhareshra, Police Station Bichala, Jagdishpur,
     District Shahabad now Bhojpur.
                                     …….Plaintiffs-Respondents-Respondents
3.   Sri Akhleshwar Prasad Singh Son of Late Ram Ekbal Singh, Resident of
     Mohalla Bartan, P.O. Dhanbad District- Dhanbad.
4.   Shanti Singh Wife of Sri Gangadhar Singh, D/o Late Ram Ekbal Singh,
     Resident of Mohalla Kazipur, P.O. Bankipur, P.S. Kadam Kuan, District-
     Patna.
5.   Smt. Kanti Singh Wife of Sheo Narayan Singh, D/o late Ram Ekbal Singh,
     Resident of Mohalla L.I.C. Colony, P.O. Chitragupta Nagar, P.S.
     Kankarbagh, District- Patna.

              ... ... Heirs of Defendant-Heirs of Appellant—Heirs of Appellant
     ======================================================
     Appearance :
     For the Appellant/s    :    Mr. Jyotindra Pratap Singh, Advocate
     For the Respondent/s   :    Mr. Girijanand Prasad, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
     ORAL JUDGMENT
     Date : 06-01-2026

     Suit Valued at         :    Rs.6000/-
     Appeal Value at        :    Rs.6000/-


                        The present second appeal has been filed against

      the judgment and decree passed and prepared on 17.08.1988 and

      02.09.1988 respectively, by 2nd Additional District Judge, Saran

      at Chapra in Title Appeal No.165 of 1981/16 of 1987, affirming
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         the judgment and decree dated 14.08.1981, passed by the 6 th

         Additional Sub-ordinate Judge, Saran in Title Suit No.69 of

         1976/61 of 1981.

                             2. This second appeal has been filed against the

         concurrent judgment and decree passed by the original Court

         and the appellate Court. The sole appellant, who preferred the

         present memorandum of appeal, died on 17.09.1997 leaving

         behind his four heirs and legal representatives. His heirs and

         legal representatives had been substituted. One of his heir and

         legal representative has been added as appellant in the present

         appeal, but his other heirs and legal representatives have been

         permitted to add as respondent Nos.3 to 5 vide order dated

         20.05.1998. Appeal notice was validly served upon the

         respondents and then the present appeal has been fixed under

         the heading for final hearing, before Hon’ble Bench.

         Subsequently, vide order dated 01.07.2024, this second appeal

         has been fixed for ex parte hearing under the provisions of

         Order 41 Rule 17(2) of the Code of Civil Procedure, 1908.

         Learned Counsel has pleased to argue this matter and also filed

         written argument on the substantial question of law framed.

                             3. Counsel for the appellant submits that the

         original plaintiffs (present respondent Nos.1 & 2) filed a suit for
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         declaration that the deed of gift dated 21.09.1972, Exhibit-B,

         executed by the plaintiffs in favour of the defendant was

         declared null and void, inoperative and not binding upon the

         plaintiff and further prayer has been made for cancellation and

         setting aside the alleged deed dated 21.09.1972.

                             4. The case of plaintiffs-respondents-respondents

         Nos.1 and 2, in brief, is that the plaintiff Masomat Mahajan

         Kunwar’s husband Abhay Narayan Singh died on 13.09.1972

         leaving behind his widow Masomat Mahajan Kunwar and two

         daughters as his only heirs and legal representatives, who

         inherited and came into possession of the entire property of

         Abhay Narayan Singh including the residential house, which is

         the subject matter of the present dispute, i.e., impugned deed of

         gift dated 21.09.1972, in which they were living since life time

         of Abhay Narayan Singh. It has been further contended that

         defendant Ram Ekbal Singh being the neighbour started

         pretending to be a real sympathizer and well wisher suggested

         them to get their names mutated in respect of the property

         inherited by them in order to avoid probable grabbing of their

         property by co-sharer/Pattidar of Abhay Narayan Singh. The

         further case is that Masomat Mahajan Kunwar was simply an

         illeterate and Pardanasi lady, upon offered to help them in this
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         regard, the defendant-appellant-appellant         Ram Ekbal Singh

         took LTI of the plaintiff as well as obtained signatures of her

         daughters with short text at his dictation on several stamp blank

         papers on false pretext that those papers would be used for

         mutation of their name in the revenue records of the State. The

         said defendant Ram Eqbal Singh just after two days of Shradh

         Ceremony         approached        Masomat   Mahajan   Kunwar   and

         represented to her that the Block Development Officer had gone

         there for conducting an enquiry in connection with mutation

         case. He again took the LTI of Mahajan Kunwar and signature

         of her daughters on certain papers and subsequently used those

         papers, fraudulently obtained deed of gift executed by them in

         his favour in respect of their house. When the plaintiffs-

         respondent-respondent received information in this regard, they

         obtained certified copy of alleged gift deed dated 20.09.1972 on

         17.04.1975 and found that false recitals were made in the deed

         and the identifier and witnesses all are strangers and not known

         to them. The documents of deed were never read over and

         explained to the plaintiffs nor did they executed the same and

         the recitals made in the deed were absolutely false and wrong.

         As a matter of fact defendant/ Ram Ekbal Singh was not in any

         manner related to Abhay Narayan Singh (husband of Masomat
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         Mahajan Kunwar) nor did he ever serve Abhay Narayan Singh

         nor did he perform the Shradh of Abhay Narayan Singh and

         neither Masomat Mahajan Kunwar nor her daughters did any

         advise for execution of deed of gift in favour of the defendant.

         There have been neither offer and acceptance nor possession of

         the house was handed over by the Masomat Mahajan Kunwar to

         Ram Ekbar Singh.

                             5. The defendant came with the case in the suit

         that the deed of gift (Ext-B) was perfectly genuine and it is

         binding on the plaintiffs. It has been alleged that Ram Ekbal

         Singh was nephew of Abhay Narayan Singh with whom he had

         great love and affection. He was rendered the services to Abhay

         Narayan Singh, spent huge amount of money and under such

         circumstances out of love and affection Masomat Mahajan

         Kunwar and her daughter executed deed of gift in respect of

         small Khaparpos house after fully understanding the intrinsic

         and implication of execution of such deed.              Defendant-

         appellant-appellant contended that the document was executed

         and registered in accordance with the provisions of law. It was

         read-over and explained to the plaintiff, who executed the same

         after understanding fully well the contents thereof. The

         identifier, the subscriber and the attesting witnesses were well
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         known to the plaintiff and no deception or fraud was practiced.

         There was proper offer and acceptance for the execution of deed

         of gift which was properly executed and registered at the

         residence of the plaintiffs. It has also contended that Abhay

         Narayan Singh himself intended to gift certain property to the

         defendant and plaintiff had also advised him to executed some

         deed of gift in favour of the plaintiff. It has also been contended

         that after the execution of the deed of gift, possession over the

         house was delivered to the defendant Ram Ekbal Singh and the

         plaintiff Masomat Mahajan Kunwar could not be said to be in

         legal occupation of the disputed house and she was living

         therein with the permission of the defendant.

                             6. The said title suit has been filed by plaintiffs-

         respondents-respondents in the year 1976 and finally decided

         on 14th August, 1981 in Title Suit No.69 of 1976/61 of 1981.

         The Trial Court has framed three issues. The most relevant

         issue is issue No.III. i.e., Is the deed of gift in question

         fraudulent, null and void, inoperative and not binding on the

         plaintiffs and liable to be cancelled and set aside?

                              7. The said issue No.III was decided by the Trial

         Court in para-8 onward and finally reached on conclusion that:

         under the facts, circumstances and evidence discussed above
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         give rise to the inevitable and irresistible conclusion that the

         defendant practiced fraud on the plaintiffs and inducing

         misrepresentation to them, they took their thumb impression and

         signature on stamped blank papers on false pretext. That they

         were to be used for mutation of their names and surreptitiously

         and fraudulently the defendant by bringing the ascribe. The

         identifier and the witnesses in collusion converted these papers,

         into the deed of gift and got the same executed on behalf of the

         plaintiffs, in his favour which was in respect of the only

         residential house of the plaintiffs and that the plaintiffs never

         executed the deed knowing and understanding the contents

         thereof and that the registration of the document too was not

         legal and valid. And the deed of gift was also not completed on

         account of absence of ingredients of gift viz. offer and

         acceptance and delivery of possession. Obviously the deed of

         gift is fraudulent, null and void inoperative and not binding on

         the plaintiffs. The plaintiffs must be held competent and justified

         in impugning and repudiating the deed in question.

                             8. During discussion, the Trial Court has

         discussed Section 123 of the Transfer of Property Act, 1882,

         which deals transfer how effected and further discussed about

         the ingredients that for the purpose of making a gift of
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         immovable property, transfer must be effected by a registered

         document signed by or on behalf of the donor and attested by at

         least two witnesses. It has been discussed that in the present

         suit out of two attesting witnesses, one witness has been acted as

         identifier. Thereafter, there is only one witness as the registering

         officer cannot be the attesting witness. Since one person Yasoda

         Nand Mishra has acted as identifier and he cannot be taken into

         consideration as witness and other person is the Registrar. The

         suit was allowed and decreed in favour of plaintiffs-

         respondents-respondents.             Thereafter, the original defendant

         Ram Ekbal Singh preferred title appeal, which was numbered as

         Title Appeal No.165 of 1991/16 of 1987. The appellate Court

         has discussed in detail about Ext-B, which is the impugned deed

         of gift dated 21.07.1972 allegedly executed by Mahazan

         Kunwar, Deopari Devi and Ram Pari Devi to Ram Ekbal Singh

         for suit land. During discussion the appellate Court stated that

         “the stamp is purchased on 19.09.1972 by Suraj Narayan Singh

         with alleged claim of authority Mahajan Kunwar. The document

         is ascribed by Sakaldeep Prasad on 21.09.1972. The document

         bears thumb impression purporting to be of Mahajan Kunwar as

         endorsed       by alleged Yasodanand Mishra on 21.09.1972. The

         document also purports to bear thumb impression and
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         signatures of Rampari Devi and Deopari Devi, their purported

         endorsement on first page includes recital “Bakshish Nama

         Likha To Sahi Kul Majbun Padkar Aur Padhbakar Samajh

         Liya” .

                              Both endorsements, namely, alleged letters of

         Rampari Devi and Deopari Devi have same recital and bears

         signature besides thumb impression dated 20.09.1972.          The

         other pages do not bear such recital. The first page is not

         attested by any witness. The second page has alleged attestation

         by Yasodanand Mishra and by Suraj Narayan Prasad. The third

         page and fourth page do not bear any attestation. The fifth page,

         which is last page, bears endorsement of ascribe of Sakaldeo

         Prasad. Thus, the document purports to be ascribed, executed

         and attested on 21.07.1972 on three stamp papers and two blank

         papers purported to be purchased on 19.09.1972 by Suraj

         Narayan Singh and this bears thumb impression dated

         29.09.1972 allegedly of plaintiff Mahajan Kunwar and Deopari

         on back of first page endorsed by alleged Yasodanand Mishra

         and this document appears to bear signature of Ram Ekbal

         Singh dated 28.09.1972 along with one thumb impression. The

         back of second page bears alleged signature and thumb

         impression of Ram Pari on 29.09.1972 and also signature and
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         thumb impression of Yasodanand Mishra on 29.09.1972. It also

         appears from the endorsement in reading on back of first page

         that the registration authority visited the resident of Mahajan

         Kunwar, Deopari and Rampari in village Nawadih.              This

         endorsement in red ink is in 14th line on back of first page. It

         does not bear signature of any person nor it bears any date nor it

         is said in this endorsement as to at what place this endorsement

         is written by the person who wrote. It further appears on back of

         first page, which is last page that it bears emboss seal stamped

         with writings indicating that it was registered on 23.11.1972

         under the particular mentioned therein. It further appears from

         front of first page that there is some endorsement therein

         including expenses Rs.56.12 and also some other charge for

         convenience and peon and in this manner this guarded total

         Rs.65.62/-.       The identifier Yasodanand Mishra has not been

         examined. The appellate Court has categorically find as like

         that of original Court that upon careful perusal of the gift deed,

         it has been found that gift is not dully attested because DW 4 is

         not reliable and other identifier-cum-attesting witness has not

         been examined. It has also been found that statement of PW 1

         and PW 2 indicate clearly that they never came face to face

         with any subscriber, identifier and witness and the statement of
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         PW 1 and PW 2 are definitely reliable at these points because of

         many other circumstances also which the appellate Court has

         indicated in the judgment and conclusively the appellate Court

         has found that Exhibit-B is not duly registered because there is

         much hide and seek. The petition for commission for Registrar

         is withheld. The receipt for fee of commission is withheld. No

         body takes responsibility to have brought registrar to the house

         of Mahajan Kunwar. The Registrar came             along with some

         person, who may be any ascribe because of DW 2 claimed that

         he never brought the Registrar and there is no reason as to why

         Registrar DW 5 must know the house of Mahajan Kunwar. He

         heard few words from behind Parda while himself sitting at

         Darbaja and felt that it is an admission of execution. No body

         told him that executents are behind Parda. DW 5 did not put

         signature below his endorsement. There is no authenticity he

         visited the house of plaintiff on 29.09.1972 nor there is

         authenticity that he has definitely visited the house of the

         plaintiff nor there is authenticity that plaintiffs were behind

         Parda, when DW 5 was at Darbaja of the alleged executent and,

         hence, there is no legal registration Ext-B.

                             9. In this view of the matter, both the original

         Court as well as the appellate Court have raised doubt on the
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         validity of Ext-B, which is the alleged deed of gift.

                             10. Here in the second appeal, the substantial

         question of law, which has been framed by this Hon’ble Court

         vide order No.4 dated 12.02.1990 reads as under:

                                                    “Whether   the   court-below

                                  has misconceived the recital of execution in

                                  the deed?”

                             11. With a view to decide the said substantial

         question of law in his favour, the appellant submits that the deed

         of gift was executed by the plaintiffs-respondents-respondents

         after going through the recital of the deed and the same was

         executed in accordance with law with full compliance of

         Section 123 of the Transfer of Property Act, 1882 (4 of 1882),

         which requires the consideration of this Court. Learned Counsel

         for the appellant further submits that there are five witnesses

         DW 1 to DW 5, who supported the story of the defendant-

         appellant-appellant but it has not been considered at all and,

         therefore, the said decision of the Trial Courts are bad in law.

         Since the reliance has been made by the Counsel for the

         appellant is on Section 123 of the Transfer of Property Act,

         1882. Therefore, it is necessary for this Court to test it. Sections

         122 and 123 of the Transfer of Property Act, 1882 state as
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         follows:

                                                            “122. “Gift” defined.-
                                           “Gift” is the transfer of certain
                                           existing      movable     or    immovable
                                           property made voluntarily and withut
                                           consideration, by one person, called
                                           the donor, to another, called the
                                           donee, and accepted by or on behalf
                                           of the donee.
                                                            Acceptance when to be
                                           made.- Such acceptance must be made
                                           during the lifetime of the donor and
                                           while he is still capable of giving. If
                                           the donee dies before acceptance, the
                                           gift is void.
                                                            123.     Transfer       how
                                           effected.- For the purpose of making a
                                           gift     of   immovable      property,   the
                                           transfer      must be effected by a
                                           registered instrument signed by or on
                                           behalf of the donor, and attested by at
                                           least two witnesses.
                                                            For the purpose of
                                           making a gift of movable property, the
                                           transfer may be effected either by a
                                           registered      instrument     signed     as
                                           aforesaid or by delivery.
                                                            Such delivery may be
                                           made in the same way as goods sold
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                                           may be delivered.”
                             12. It is the categorical direction of Section 123

         of the Transfer of Property Act, 1882 that the Gift of immovable

         property must be effected (i) by a registered instrument (ii)

         signed on behalf of the donor, (iii) attested by at least two

         witnesses.

                             13. From the deed it becomes crystal clear that

         Yadodanand Singh was the identifier and the same Yasodanand

         Singh had also signed at one page as witness. Deopari and

         Rampari are claiming that their signature has been obtained by

         fraud. Upon perusal of Ext-B, it further transpires that the said

         deed of gift is of five pages. On the last three pages, there are

         no signature of witnesses, only in second page there is signature

         of one witness. Therefore, the said Ext-B does not fulfill the

         ingredient of Section 123 of the Transfer of Property Act, 1882,

         and, hence, this Court is of the firm view that the said Ext-B is

         not said to be a gift of deed and, hence, the ingredients of 123 of

         the T.P. Act are lacking. It is due to this reason that the

         substantial question of law that whether Court below has

         misconceived the recital of execution of the deed cannot be

         decided in favour of appellant.             Hence, on the substantial

         question of law that whether the court-below has misconceived

         the recital of execution of the gift deed, this Court is of the firm
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                      view that when the said deed does not fulfills the basic

                      ingredients of Section 123 of the Transfer of Property Act, 1882,

                      there is no question of going through the recital of the execution

                      of the deed and whatever be the discussion about the said Ext-B

                      on factual matrix as well as discussing evidence, this Court is of

                      the firm view that there is no need of any interference in the

                      concurrent finding of the Courts-below and in result, the second

                      appeal is dismissed.

                                          14. Office is directed to return back the lower

                      court records to the Trial Court.


                                                                    (Dr. Anshuman, J)
Mkr./-
AFR/NAFR                NAFR
CAV DATE                N.A.
Uploading Date          09.01.2026
Transmission Date       09.01.2026