IMPORTANT POINT
If gift is evidenced by consideration, same cannot be valid one within meaning of Section 122 of T.P. Act.

JUDGMENT

R. Subhash Reddy, J.

1. Leave granted.

2. The appellant in this appeal was the first defendant in the suit in, Civil Suit No.RBT 1251/95/92 filed before the Sub-Judge, 1st Class, Jawali, District Kangra, Himachal Pradesh. This appeal is filed aggrieved by the judgment dated 25.10.2016 in Regular Second Appeal No. 383 of 2007 passed by the High Court of Himachal Pradesh, at Shimla.

3. The first respondent-plaintiff has filed the aforesaid suit for declaration to the effect that he is joint owner to the extent of 435/924 shares i.e 0-04-57 hectares in the suit scheduled land. It was his case in the suit that Smt. Vidya Devi, the mother of the plaintiff and the first defendant was the original owner of the suit land. She executed a registered Will in favour of him and the appellant herein on 09.04.1991. As per the Will, 0-03-84 hectares of land was bequeathed to the plaintiff and 0-02-85 hectares of land was bequeathed to the appellant herein. Smt. Vidya Devi had also executed a Will in respect of other land in favour of the proforma respondent nos.2 & 3 herein. It is the allegation of the respondent no.1-plaintiff that the appellant herein by playing fraud on Smt. Vidya Devi, on 23.04.1991, got executed a fictitious gift deed without her knowledge and consent. It is further pleaded that the suit land is ancestral property and the parties are governed by Kangra Customary Law to inherit the land as such he is entitled for declaration as prayed for.

4. The appellant-defendant No.1 has contested the suit. While denying various allegations made by the plaintiff, it was the case of the appellant herein that Smt. Vidya Devi had executed a valid gift deed in his favour out of her free will, consent and without undue influence. The gift deed was registered with the Sub- Registrar as such question of fraud does not arise. It was pleaded, by virtue of the gift, the appellant has become the owner of 558 shares out of 924 shares, out of which 285 shares were due on account of the gift deed. The appellant also denied the allegation of the respondent no.1-plaintiff that the suit land was ancestral property and governed by Kangra customary law.

5. The trial Court by judgment dated 2nd June, 2003 has dismissed the suit filed by the first respondent herein. The trial Court on appreciation of evidence on record has held that the donor Smt. Vidya Devi has never challenged the gift deed during her lifetime. The first respondent-plaintiff being a third party to the gift deed, it is not open to him to challenge the validity of the gift on any ground. Further the trial Court has held that the evidence on record is not sufficient to hold that any fraud has been played on Smt. Vidya Devi for execution of the gift deed. The plea of the plaintiff that as the document of gift is evidenced by consideration of Rs. 5,000/-the same is in violation of provision under Section 122 of the Transfer of Property Act, 1882 is also negatived by recording a finding that there is no endorsement of receipt of consideration amount. On the allegation of the plaintiff that the suit land is ancestral property and they are covered by Kangra Customary law, the trial Court has held that Vidya Devi has derived title by way of will from her late father as such suit property is to be considered as self acquired property of Smt. Vidya Devi.

6. With the aforesaid findings, the trial Court has dismissed the suit.

7. Aggrieved by the judgment and decree passed by the trial Court dismissing the suit, the first respondent has filed first appeal before the Additional District Judge, Fast Track Court, Kangra at Dharamsala, Himachal Pradesh. Even the First Appellate Court has agreed with the findings of the trial Court by judgment dated 2nd August, 2007 and the First Appeal (Civil Appeal No. 147-J/05/03) was dismissed.

8. Aggrieved by the same, the first respondent- plaintiff has preferred second appeal in the High Court in Regular Second Appeal No. 383 of 2007.

9. The High Court, by impu