The heirs of a deceased party cannot confer rights through a gift deed when prior partition eliminates their interest in the property.

JUDGMENT :

GAURI GODSE, J.

1. This appeal is preferred by the heirs and legal representatives of the original defendant no.1, to challenge the judgment and decree passed by the first appellate court granting a 1/4^th share to the plaintiffs. The second appeal is admitted by order dated 29^th June 1993 on the substantial questions of law framed in ground nos. 4, 6, 9 and 10 of the appeal memo. The ground nos. 4, 6, 9 and 10 read as under:

“ 4. Whether the learned Appellate Judge was right in holding that gift-deed at Exhibit-62 executed by Tomu’s heirs in favour of plaintiffs was a valid gift-deed?

6. Whether the learned Appellate Judge was right in holding that acceptance of the gift by Plaintiff No. 1 on behalf of other plaintiffs was proper and legal, especially when the plaintiff nos. 2 and 3 were competent to accept the gift and there was no evidence to show that the plaintiff nos. 2 and 3 authorised plaintiff no.1 to accept the gift on their favour?

9. Whether the learned Appellate Judge was right in ignoring the fact that execution of alleged gift-deed at Exhibit-62 was not proved at all as neither of the attesting witnesses were examined to prove the execution of the said document as required by the law under section 67 of the Evidence Act?

10. Whether the learned Appellate Judge was right in holding that gift-deed at Exhibit-62 was a valid document especially when it was not attested at all as required by the law under section 123 of Transfer of Property Act .”

2. By order dated 6^th February 2025, the additional substantial questions of law are framed under the proviso to sub-section (5) of Section 100 of the Civil Procedure Code , 1908 (‘CPC’), which reads as under:

(I) Whether there was partition amongst Francis, Tomu, Peter and Igneses and whether in view of the partition the suit property was allotted to the share of Francis and Peter jointly?

(II) If the partition as claimed by the appellants is accepted, whether Tomu’s heirs can be held entitled to execute the gift deed in favour of the plaintiffs?

(III) Whether Tomu’s heirs were entitled to execute the gift deed in respect of the suit property on the ground that Tomu had 1/4^th undivided share in the suit property?

(IV) Whether the first appellate court erred in granting decree for partition and separate possession of Tomu’s 1/4th undivided share to the plaintiffs, in absence of all the heirs and legal representatives of Igneses who also would get 1/4^th share in the suit property, if the plaintiffs’ contention that there was no partition is accepted?

(V) Whether for want of adding all the heirs and legal representatives of Igneses as parties to the suit, it could be said that the suit was bad for non joinder of necessary parties?

3. The suit for partition and separate possession was filed by the sons of Francis from his first wife. The suit was filed seeking partition and separate possession from Francis. During the pendency of the suit, Francis expired on 12^th March 1975; hence, the second wife of Francis and the children of Francis from his second wife were brought on record as heirs and legal representatives of the deceased Francis. The suit property was originally owned by Simav, i.e., the father of Francis. Simav had four sons – Francis, Tomu, Peter and Igneses. The suit for partition and separate possession was filed on the ground that the heirs and legal representatives of Tomu have gifted Tomu’s 1/4^th undivided share to the plaintiffs. For a better understanding of the factual aspects and the relations between the parties, the family tree is reproduced below:

4. By order dated 21^st November 2024, the appellants were permitted to delete respondent nos. 4 to 9 at their o