A deed of gift executed under undue influence is void.

Ramratna Singh, J.

1. The suit out of which this appeal arises was for the recovery of possession of two holdings situated within the Madhupur Municipality, with mesne profits from the 2nd September 1952. As the suit was decreed, the defendants have preferred this appeal.

2. One Padarath Koeri had four sons, of whom two died long ago without leaving any issue or widow. Of the remaining two, Hira Koeri died leaving a son, Bhola Koeri, defendant No. 1, and defendants 2 to 4 are sons of Bhola Koeri. The second son of Padaralh Koeri named Sheodutt executed a will on the 4th February 1936 in respect of the houses standing on these holdings in favour of Harihar Prasad, plaintiff No. 3 son of the brother of Sheodutts wife, Musammat Kabutari (defendant No. 5), and also in favour of Durga Prasad (plaintiff No. 4), son of Sheodutts daughters daughter. On the 5th June 1948, Sheodutt superseded the will by executing a deed of gift in respect of these very holdings in favour of plaintiffs 1 and 2 who are, respectively, the wives of plaintiffs 3 and 4. These two donees got their names recorded in the records of the Ghatwal, who was the landlord, and also in the records of the Municipality.

Sheodutt died on the 8th August 1952; and Musammat Kabutari died in 1959 during the pendency of this appeal. In September 1952, there was a dispute regarding possession between the parties. This resulted in a proceeding under Sec.144 of the Criminal Procedure Code, which was converted into a proceeding under Sec.145 of the Code. The Magistrate upheld the possession of defendants 1 and 4 over an area of about 18 kathas out of the two holdings and that area including the constructions thereon is the disputed property in suit. The plaintiffs went up in revision against this order, but the application in revision was rejected by the Additional District Magistrate of the Santhal parganas on the 30th December 1953.

3. The case of the plaintiffs was that Sheodutt was separate in all respects from his brothers and their descendants and, as he had love and affection for the plaintiffs, he made a gift, of the pro-petty in favour of plaintiffs 1 and 2 and he completely divested himself of the gifted property. But they were forcibly dispossessed from the disputed area by defendants 1 to 4 on the 2nd September 1952; and, as the proceeding under Sec.145 was decided against them, they instituted the suit on the 29th November 1954. Defendant No. 5, Mussammat Kabutari, supported the case of the plaintiffs in her written statement dated the 14th February 1955.

4. Defendants 1 to 4 stated in a joint written statement that, although Sheodutt and his brothers lived separate from one another and constructed separate houses amicably on the ancestral land, they did not partition the ancestral property by metes and bounds, so as to give Sheodutt an absolute ownership over the property in his possession. Sheodutt is saij to have executed the will and the deed of gift at the instance of the plaintiffs when he had grown very old, had lost his eye-sight and was not capable of understanding matters, mainly with a view to defraud creditors. It was then asserted that, in view of Sec.27 of Regulation III of 1872, Sheodutt had no right to transfer the land over which the disputed houses stand, as they were Jammabandi raiyati holdings and their character of non-transferability had never been changed. The validity of the gift has been challenged and it is said that Sheodutt remained in possession of the property included in the deed in his own right until his death. The allegation of forcible dispossession of the plaintiffs by the defendants is also denied; and the suit is said to be bad for misjoinder of plaintiffs 3 and 4.

5. The learned Subordinate Judge who tried the suit, found that, though the disputed land was originally non-transferable, its character of non-transferability was changed after it was included in the Municipal area of Madhpur. He found further that Sheodutt and