LAXMI NARAIN Vs. OM PARKASH

JUDGEMENT

(1.) This is an appeal by Laxmi Narain defendant appellant against the judgment and decree dated 4th December, 1969, passed by the learned District Judge, Hissar.

(2.) The appellant executed a gift deed of land measuring 7 bighas 6 biswas which was 2/3rd share of land measuring 11 bighas 1 biswas in favour of his real brothers, the plaintiff-respondents. This deed was executed on 27th of June, 1960. The respondents filed a suit on 16th of December, 1965, for seeking a declaration that they were owners of the land in suit on the basis of the gift deed and the defendant-appellants had no right to object to the mutation being sanctioned in their favour. The defendant-appellant in the written statement admitted having executed the gift deed but asserted that in reality it was a sale deed in which the plaintiff-respondents were required to pay him a sum of Rs. 3000/-. Since the sum had not been paid to him, the deed was void in the eyes of law. The parties went to the trial on the basis of the following issues.

(3.) It was then contended by the learned counsel for the appellant that the case set up by the respondents was that they actually joined in a suit for pre-emption which was filed in the name of Laxmi Narain and since the respondents contributed money in this suit to the extent of 2/3rd share it was agreed that 2/3rd of the land which was required for pre-emption should be gifted in their favour. This arrangement according to the learned counsel for the appellant, really changed the nature of the gift deed which was according to him a sale deed in fact. It was urged that under Section 122 of the Transfer of Property Act, a gift is defined as transfer of immoveable property made voluntarily without any consideration. Since the respondents themselves inserted to have paid Rs. 2500/- no gift deed should have been executed in their favour. I am not impressed with this argument. The parties are real brothers and it is not unnatural for brothers to file a pre-emption suit in the name of one brother and to divide the property among themselves after such a suit succeeds. In these circumstances, a gift deed cannot be held to be inoperative and illegal merely because on an earlier occasion the donees had advanced some money for securing the property gifted.