Khatim Reza, J. – Heard Mr. Jitendra Kishore Verma, learned counsel for the appellants and Mr. S.N.P. Singh, learned senior counsel for the respondents.

2. This Second Appeal has been filed against the judgment and decree dated 29.04.2013 passed by the learned Additional District Judge- II, Danapur, Patna in Title Appeal No. 17 of 2009 whereby the learned lower Appellate Court reversed the judgement and decree dated 20.01.2009 passed by the learned Munsif, Danapur, Patna in Title Partition Suit No. 143 of 1989.

3. The plaintiff-appellant filed Partition Suit No. 143 of 1989 for challenging the gift deed dated 24/25-09-1986 executed by her father in favour of his two nephews (brother’s sons) alleging it to be fraudulent, fabricated, void ab initio and not binding upon her. Accordingly, she prayed for a declaration to that effect and sought partition of her half share in Schedule II property.

4. The case of the plaintiff is that one Basudev Singh was the common ancestor of the parties having three sons namely, Shiv Nandan Singh, Shyam Nandan Singh and Ram Lakhan Singh. Shiv Nandan Singh had two sons namely, Ram Naresh Prasad Singh (father of the plaintiff and donor of the gift deed) and Net Narayan Prasad Singh as well as a daughter, Hiramani Devi (intervenor-defendant).

5. It is further case of the plaintiff that, Shyam Nandan Singh, the second son (whose wife pre-deceased him) died issueless and Ram Lakhan Singh separated from the family in the year 1943 by way of partial partition meaning thereby separating his share from the branch of Shiv Nandan Singh. The said partition was made branch-wise. While Ram Lakhan Singh took his share and the branch of Shiv Nandan Singh as a whole got separated from the branch of Ram Lakhan Singh. However, the two sons and a daughter of Shiv Nandan Singh remained in jointness and there was no partition between them, as such, the dispute is amongst the branch of Shiv Nandan Singh inter se. At the time of partial partion in the year 1943, the remaining joint family consisted of Ram Naresh Prasad Singh and Net Narayan Prasad Singh as coparceners with the latter as Karta. Both brothers had half undivided share in the joint family property. It is further contended that these two brothers had also a full sister, Hiramani Devi, who was later impleaded as intervenor-defendant.

6. Further case of the plaintiff is that during the jointness of Ram Naresh Prasad Singh and Net Narayan Prasad Singh, her father Ram Naresh Prasad Singh purportedly executed a gift deed dated 24/25-09-1986 in favour of Brij Nandan Sharma (defendant no. 2) and Surya Nandan Sharma (defendant no. 3) who are sons of Net Narayan Prasad Singh (defendant no. 1). The Schedule II property being joint family property was gifted by claiming it to be the personal share of Ram Naresh Prasad Singh although no partition had taken place between the two brothers. It has been further pleaded in the plaint that there was no partition in the joint family of Ram Naresh Prasad Singh and Net Narayan Prasad Singh. Therefore, the gift deed executed by the father of the plaintiff is void ab initio and is also forged and fabricated as at the time of execution of the gift deed, the donor was suffering from paralysis and also that he was not competent to understand the nature and purport of the gift, on the said account the gift is void.

7. On summons, defendant nos. 1, 2 & 3 filed their written statement. The defendant nos. 2 and 3 are donees of the said gift deed whereas defendant no. 1 is the father of the defendant no. 2 and 3. Apart from ornamental objection with regard to maintainability of the suit, it was further contended that there was no unity of title and possession between the plaintiffs and defendants and that Net Narayan Prasad Singh was not the ‘Karta’ of the said family rather plaintiff’s father Ram Naresh Prasad Singh was the ‘karta’ of the family till he was alive.

8. It is further pleaded that when the gift was executed, the donor was not suffer