NARENDER NATH Vs. OM PRAKASH

JUDGEMENT

(1.) Learned trial Court as well as learned first appellate Court vide their respective concurrent judgments dtd. 28/3/2005 and 30/11/2005 decreed the civil suit instituted by the respondent-plaintiff. The defendants have assailed these judgments and decrees in this regular second appeal.

(2.) The civil suit was filed by the respondent/plaintiff seeking declaration that a gift deed dtd. 14/8/1981 (Ex.PW-1/A) executed by his father/deceased Faquir Chand in favour of plaintiff's brother-Narender Nath (defendant No.1) in respect of the suit land was null and void. Suit property was ancestral in nature and, therefore, Faquir Chand was not competent to execute the gift deed. The ancestral property could not have been alienated by Faquir Chand without the consent of the plaintiff-a coparcener. Mutation attested on the basis of this gift deed is also not valid. After execution of the gift deed, defendant No. 1 Narender Nath sold his 1/3rd share in the suit property in favour of defendant No. 2- Rajesh Kumar. This alienation is also void Both the learned Courts below determined the nature of suit property as ancestral. On the basis of oral and documentary evidence on record, factual findings were returned that suit property was inherited by one Pritam from his father Mansia. From Pritam, the property passed on by inheritance to his son Faquir Chand. Plaintiff and defendants are children of Faquir Chand. Suit property in the hands of Faquir Chand being ancestral could not have been gifted by him in favour of defendants without plaintiff's consent. Hence, gift deed dtd. 14/8/1981 was declared void. Mutation attested on the basis of gift deed was held invalid.

(3.) This second appeal filed by the defendants was admitted on 13/1/2006 on the following substantial questions of law :-