Acceptance of a gift is an essential condition for its validity, and such acceptance must be made during the lifetime of the donor.

P. K. MISRA, J.

( 1 ) PLAINTIFFS have filed this appeal against a reversing judgment. The suit was filed for setting aside the deed of gift dated 20. 4. 1977 and sale deed dated 23. 11 1977 executed in favour of defendant No. 1 by Dhadi swain and for confirmation of possession, or recovery of possession, and permanent injunction and other ancillary reliefs. Plaintiff No. 1 is the brother of late Dhadi Swain and plaintiff no. 2 is son of plaintiff No. 1. It is alleged that a deed of gift was obtained from late Dhadi swain by defendant No. 1 fraudulently and by exercise of undue influence in respect of "a" schedule property on 20. 4. 1977 and a sale deed was similarly obtained in respect of "b" schedule property on 23. 11. 1977. It is not disputed that Dhadi Swain died issueless. The suit was filed after death of Dhadi Swaim in the year 1978.

( 2 ) DEFENDANT No. 1 is the son of defendant No. 2. In their joint written statement it was claimed that the deed of gift was executed in favour of defendant No. 1 out of love and affection. Subsequently, the sale deed was executed in respect of "b" Schedule land, as dhadi Swain wanted to meet his personal expenses and to repay the loan incurred by him. It was claimed that the deed of gift as well as the sale deed had been duly executed. It was further claimed that defendants 1 and 2 were in possession of both "a" Schedule and "b" schedule properties and had constructed house on a portion of the disputed land.

( 3 ) SINCE Jitendra was claiming to be the adopted son of late Dhadi Swain, his natural father and he himself were impleaded as defendants 3 and 4 respectively

( 4 ) THE trial Court decreed the suit in respect of "a" Schedule property on the finding that the deed of gift had not been validly executed. The suit was dismissed in respect of "b" Schedule property on a finding that the sale deed had been validity executed for consideration. The plea of adoption set up by defendants 3 and 4 was negatived. The said finding having not been challenged by defendants 3 and 4 any further became final.

( 5 ) APPEAL was filed by defendants 1 and 2 against the part decree in favour of the plaintiffs relating "a" Schedule property. A cross-objection was filed on behalf of the plaintiff in respect of part of the decree of the trial Court dismissing the suit in respect of "b" Schedule property.

( 6 ) THE lower appellate Court confirmed the decision of the trial Court relating to "b" schedule property, but reversed the decree in respect of "a" Scheudle property on a finding that the deed of gift had been validly executed. Accordingly, the appeal of defendants 1 and 2 was allowed and the cross-objection of plaintiffs was dismissed.

( 7 ) AGAINST the aforesaid decision of the lower appellate Court, the present Second appeal has been filed challenging the findings of the lower appellate Court in respect of both "a" Schedule property as well as "b" Schedule property, that is to say. relating to the validity of the deed of gift as well as the sale deed. However, at the time of admission of the Second Appeal, the finding relating to sale deed (Ext. B) was confirmed and the appeal was confined to the question of validity of the deed of gift. The following substantial question of law was framed by order dated 18. 7. 1986 :"this appeal is restricted only to the validity of Ext. A/1, the Gift-Deed and must be taken to be concluded so far as ext. B is concerned. The substantial question of law to be urged in this appeal is whether the gift in question was given effect to while Dhadi was alive and whether the conditions of the gift-deed have been duly fulfilled or not. "

( 8 ) SECTION 122 of the Tansfer of Property act defines "gift" in the following terms. "122. Gift defined. 'gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance wh