Heard Mr. K.N.Chaubey, the learned senior counsel appearing on behalf of the appellants in support of this appeal.

This appeal has been filed by the defendant against the judgment and decree dated 26.02.2009 passed by Additional District and Sessions Judge,Fast Track Court-III, West Champaran at Bettiah in T.A.No.09/1995 affirming the judgment and decree dated 09.12.1994 passed by Additional Munsif III, Bettiah, West Champaran in T.S.No. 82/1990.

2. The suit has been filed by the plaintiff for declaration that the defendant no.2, Bibi Shayada is not the daughter of late Rahmat Mian and Bibi Khedaran and further two gift deeds dated 09.12.1987/23.12.1987 and 19.12.1987 executed by Bibi Khedaran in favour of defendant no.1, Ali Hasan Mian and defendant no.2, Bibi Shayada are forged, fabricated and illegal documents. The further consequential relief of injunction has also been prayed for.

3. Admittedly, the suit property belonged to Bibi Khedaran. The plaintiff no.1 is the son of Bibi Khedaran who has challenged the two gift deeds claimed by defendant nos. 1 and 2 to have been executed by her in their favour, mainly on the ground that the same had been obtained by the defendant nos. 1 and 2(husband and wife) by playing fraud upon the executant, Bibi Khedaran. It is also the case of the plaintiff that Bibi Khedaran was an old lady and the defendants obtained a thumb impression on sada stamp papers by taking benefit of their friendly and intimate relationship with her when she was terminally ill. The plaintiffs have alleged that the defendants later on fabricated the gift deeds in their favour with regard to the entire property of Bibi Khedaran.

4. The defendants have appeared and denied the allegations of the plaintiffs and have asserted that Bibi Khedran had executed the two gift deeds out of her freewill and volition in favour of the defendants. The defendants have claimed that defendant no.2, Bibi Shayada is the daughter of Bibi Khedaran and defendant no.1, Ali Hasan Mian is her son-in-law and the gift deeds had been executed out of love and affection for them by Bibi Khedaran.

5. On the basis of the pleadings of the parties, specific issue with regard to the allegation of fraud in execution of the two gift deeds was framed besides other issues. After considering the pleadings, evidence and rival submissions of the parties, both the courts below have recorded concurrent finding of fact that the gift deed dated 19.12.1987 in favour of defendant no.1, Ali Hasan Mian has been obtained by fraudulent means and is not a valid document. Both the courts below have further held that defendant no.2, Bibi Shayada is not daughter of Bibi Khedaran. However, with regard to the gift deed dated 19.12.1987 for 4 Dhurs of land in favour of the defendant no.2 it has been found by the trial court that Bibi Khedaran had earlier orally gifted her 4 dhurs of land to the defendant no.2, Bibi Shayada and in the house constructed over the same she has been residing and has also let out some portions to tenant. It has been further found by the trial court that the oral gift had been made by Bibi Khedaran in favour of defendant no.2 after being pleased with the services of defendant no.2 who was daughter of her friend and on the basis of these findings, the trial court upheld the validity of the gift deed dated 19.12.1987 of the defendant no.2. As there was no appeal or cross appeal by the plaintiffs against the dismissal of the suit with regard to the gift deed dated 19.12.1987 in favour of defendant no.2, the appellate court has not discussed evidence and legality of the finding of the trial court upholding this validity.

6. Learned counsel appearing on behalf of the appellants has assailed the impugned judgments of the courts below firstly, on the ground that the burden of proof has been wrongly placed upon the defendants to prove the validity of the gift deeds in question even when there is no assertion and proof that the donor, Bibi Khedaran was a Par