SHAMBHU DAYAL DUBEY Vs. SUNDERLAL DUBEY AND OTHERS

JUDGEMENT

(1.) THE undisputed facts giving rise to this Second appeal are that one Ram Das was having lease hold rights in the suit land which had devolved upon his son Sunder Lal who subsequently got it free hold. The said Sundar Lal executed a gift-deed dated 27.12.1990 of the said land/house in favour of his son Sambhoo Dayal Dubey and his wife Smt. Pushpa Devi. He thereafter transferred the same very property to Nirmal Kumar Jain vide sale-deed dated 9.12.1997. Before making the sale deed he instituted a suit for cancellation of the gift deed dated 27.12.1990 on the ground that it was never acted upon and was not accepted by the donees i.e. his son Sambhoo Dayal Dubey and his wife Smt. Pushpa Devi. The suit was decreed by the Court of first instance which decree has been affirmed in appeal.

(2.) AGGRIEVED by the judgments, orders and the decree passed by the Courts below cancelling the gift deed dated 27.12.1990 defendants Sambhoo Dayal Dubey and Smt. Pushpa Devi have preferred this second appeal.

(3.) SRI Misra has made only one submission that in view of the admitted possession of the defendant appellants over the property in dispute, it cannot be said that the gift deed was not accepted. He has relied upon a Division Bench decision of this Court reported in AIR 1932 All 444, Mt. Anandi Devi v. Mohan Lal and others, wherein it has been ruled that acceptance of gift may be express or implied and the possession of donee is proof of acceptance. In reply to the above argument it has been submitted that in view of the pleadings and the evidence on record the above implied acceptance of the gift deed is not established.