The central legal point established in the judgment is the requirement of acceptance and transfer of possession for a gift deed to become operative, as well as the evidences available on record that negated the plaintiffs' case of execution of the deed.

This Second Appeal under section 100 of the Code of Civil Procedure has been filed against the judgement and decree dated 07.10.1994 passed by learned 2nd Additional District Judge, Patna in Title Appeal No. 128/1991 affirming the judgment and decree passed by learned 10th Subordinate Judge, Patna in Title Suit No. 36 of 1990/ 3 of 1990.

2. The appellants herein were the plaintiffs before the court below. Partition Suit No. 36/1990 was filed by the appellants claiming their 2/3rd share in respect of the suit property i.e., the land with house measuring 53 decimals of plot No. 375, Khata No. 12 Tauji No. 5070 situated at village Hamidpur, Kurji in the district of Patna. As per the plaintiffs’ case, one Abdul Shakur had two wives. From the first wife he had a son Nazirul Haque and a daughter Juwaida Khatoon. From the second wife he had three sons, namely, Moinuddin, Fashiuddin, Badruddin and three daughters, Kaniz Fatima, Anisul Fatima and Monisul Fatima. The said Abdul Shakur is said to have executed a registered Tamleeknama (Exhibit-2) on 07.11.1953 in favour of one of his sons, namely, Badruddin and two of his daughters, Kaniz Fatima and Monisul Fatima with respect to several lands including the suit land in equal shares. The donees are said to have came and remained in possession as owner of the suit property which were earlier looked after by their father. As per plaintiffs’ case Abdul Shakur died in 1965 whereafter Badruddin started looking after the entire property being only male among the donees. He collected rent and distributed it among the three donees equally. As per their case, the three donees, on 16.05.1979, partitioned their lands, excluding the suit land, by registered deed of partition (Exhibit-J) and thereafter the two sisters partitioned their share allotted to them jointly in the partition of 1975 by a registered deed of partition dated 25.04.1981. As per plaintiffs’ case the suit land, i.e., plot No. 375 was left joint as it was an orchard and was being looked after by defendant No.1 (Badruddin) on behalf of all the three donees. Gradually, the trees dried up and the donees built up their house on the portion thereof and inducted tenants who had been paying rent.

3. This is to be noted that Kaniz Fatima, one of the donees, had died and her heirs, plaintiffs Nos. 2 to 9, pursuit the suit.

4. The defendants/ respondents contested the suit by filing their written statement. They claimed that the Tamleeknama (Exhibit-2) dated 07.11.1953 allegedly executed by Abdul Shakur was forged. It was their specific case that Abdul Shakur sold portion of plot Nos. 191, 278, 295, 375 during his lifetime and remained owner of the rest of the lands till his death, which were inherited by plaintiff No.1 and mother of plaintiffs Nos. 2 to 9 and were partitioned by registered deed dated 16.05.1979. The defendants made out a case that the suit land was gifted by Abdul Shakur to defendant No.1 by Tamleeknama (Exhibit-B) dated 13.12.1963 and he came in possession thereafter as exclusive owner. He got his name mutated with respect to the suit land and sold a portion thereof to defendant No.2 by a registered deed dated 05.02.1990. The defendants claimed that the suit was bad for non joinder of the parties since Anisul Fatima, one of the daughters, of Abdul Shakur, who remained in India was not impleaded as a party in the suit.

5. On the basis of respective pleadings of the parties, learned trial court framed the flowing issues for determination:-

(i) Is the suit as framed is maintainable?

(ii) Have the plaintiffs got any cause of action for the suit?

(iii) Is the suit barred by laws of limitation and ouster?

(iv) Is the gift deed (Tamleeknama) dated 07.11.1953 alleged to have been executed by Abdul Sakur in favour of Munisul Fatima Kaniz Fatima?

(v) Are the plaintiffs entitled to decree as claimed?

(vi) To what relief or reliefs, if any, the plaintiffs are entitled?

6. Learned trial court after examining the oral and do