PARAS AHIR Vs. LALI DEVI

JUDGEMENT

(1.) Heard Mr.Anjani Kumar Sinha, the learned counsel appearing on behalf of the appellants in support of this appeal.

(2.) Both the courts below after considering the evidence and rival submissions of the parties have reached to the concurrent finding that the gift deed in question(Ext.B/1) is not a document which has been executed with freewill and volition by the donor (Sukhdeo Ahir) in favour of the donees(defendants).lt has further been held that the defendants have failed to prove the execution of the gift deed in their favour by examining at least one attesting witness thereupon in view of the provisions of Section 68 of the Evidence Act. As a result the suit was decreed holding the gift deed (Ext.B/1)to be illegal and invalid document and appeal thereof has also been dismissed.

(3.) The learned counsel appearing on behalf of the appellants has vehemently argued that the error of law has been committed by both the courts below in attracting the provisions of Section 68 and holding on that basis that the execution of the gift deed could not be proved by the defendants. It has been urged by the learned counsel that the written statement filed by the donor, Sukhdeo Ahir, in the earlier suit brought on record as Ext.D/1 clearly shows that he had admitted to have executed the gift deed in favour of the defendants. It has been contended that although the earlier suit was with regard to Ext. B i.e. the gift deed in favour of the defendants of the year 1982 but the factum of execution and the intention of the donor to have willingly executed the gift deed in favour of the defendants was explicit. Referring to the provisions of Section 33 of the Evidence Act the learned counsel has submitted that the previous admission by the donor accepting gift deed could be sufficient to overcome the provisions of Section 68 of the Evidence Act. Thus the learned counsel has contended that substantial question of law arises for consideration in this appeal as the defendants have been wrongly non-suited by both the courts below.