R.S.SARKARIA, J.

(1) THIS appeal by special leave is directed against a judgment, dated 9/11/1967, of the Patna High court decreeing the plaintiffs suit after reversing the judgment of the Additional District Judge. Dumka.

(2) ONE Ebad Sheikh, the predecessor-in-interest of the respondents herein, instituted a suit in the court of Subordinate Judge at Pakur in 1960 fora declaration that the hiba-bil-ewaz, dated 9/02/1959, executed by him, was void and inoperative due to fraud and misrepresentation proceeding from the donee, Afsar Sheikh, original defendant No. 1 (appellant No. 1 herein). Ebad claimed a further declaration, confirming his possession over the suit lands which were the subject of the hiba. In the alternative, he prayed for possession thereof.

(3) THE plaintiffs case as laid in the plaint is, that he is an illiterate, simple villager, aged about 90 years. On 2/04/1957, one Saifuddin fraudulently got executed and registered a will, dated 2/04/1957, by the plaintiff in favour of the former and his wife in respect of the suit lands. When this fraud was discovered by the plaintiff, he brought it to the notice of Afsar appellant, a distant relation who was in his confidence and used to help him in cultivation of his lands. Afsar then on 3/02/1959, took the plaintiff to Pakur for execution and registration of a deed cancelling the will. A cancellation deed was drawn up and executed by the plaintiff, but it could not be presented for registration on that date on account of some delay. On 9/02/1959, Afsar again took the plaintiff to Pakur and represented that the cancellation deed which was prepared on 3/02/1959, had been misplaced and lost and consequently, it was necessary to execute a fresh deed of cancellation. With this misrepresentation, Afsar got executed and registered in his favour a hiba-bil-ewaz purporting to be a transfer of 12« bighas of land by the plaintiff. Thereafter Afsar sold some of the land which he had obtained under the hiba-bil-ewaz to defendant-appellant No. 2. This sale deed executed by Afsar was bogus and without consideration and did not confer any title or interest on the transferee.

(4) IN his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiffs mother. The defendants father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff has transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the donee a dhoti as a symbolic consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba.

(5) AFTER considering the pleadings, the trial court framed three issues. Issue No. 2 as recast on 8/08/1961, was as follows: Is the hiba-bil-ewaz void and inoperative, having been fraudulently obtained by defendant first party, as alleged by the plaintiff? Was it executed bona fide by the plaintiff out of his own free will and given effect to so as to confer valid title upon defendant first party with respect to the lands in suit ?

(6) THE trial court found that there was no fraud or misrepresentation on the part of Afsar. It further held that the donee was in possession of the gifted lands ever since the gift. In the result, it dismissed the suit.

(7) AGGRIEVED, the plaintiff preferred an appeal to the District Judge, who by his judgment, dated 3/07/1962, dismissed the same, and aff