The legal principle established is that for a gift deed to be valid, it must be executed in accordance with the Transfer of Property Act, including the requirement of attestation by witnesses.

JUDGMENT :

A.K. RATH, J.

1. This is an appeal against the judgment and decree dated 4.1.2001 and 12.1.2001 respectively of the learned Addl. District Judge, Bhanjanagar in Title Appeal No. 14 of 2000 setting aside the judgment and decree dated 26.10.1992 and 11.11.1992 respectively passed by learned Munsif, Bhanjanagar in T.S No. 35 of 1989 in a suit for permanent injunction.

2. Respondents are the plaintiffs. The case of the plaintiffs is that the plaintiffs-school was established mostly on the gift and donation of the public. The defendant gifted the suit schedule land to the school. He executed the registered gift deed No. 3658/1966, which was duly accepted by the school. Thereafter, the school made a huge investment to make use of the suit land and planted trees on it. The plaintiffs-school has perfected title by way of adverse possession. On 20.9.1989, the defendant threatened to dispossess the plaintiffs-school for which, the suit was instituted.

3. Pursuant to issuance of summons, the defendant entered appearance and filed a written statement stating therein that the suit land is the ancestral property of his father. The gift deed was procured from him by Jami Bada Kasinath Prusty, President of the Managing Committee of the school on misrepresentation that it was formally required to show solvency and status of the proposed High School to get recognition and aid. The gift deed was a nominal one. He never intended to gift the suit property to the plaintiffs-school. Possession of the land was not delivered. The land was not mutated by the donee. He had no right to execute gift deed in respect of the ancestral property. He is in possession of the suit land. During pendency of the appeal, the sole defendant died whereafter his legal heirs have been substituted.

4. Stemming on the pleadings of the parties, the learned trial court struck seven issues, out of which issue nos. 5 and 6 are pivotal, which are quoted hereunder:

“5. Whether the gift deed dated 25.6.1966 executed by the defendant in favour of the plaintiffs school is a nominal one and does not confer any right on the plaintiff?

6. Whether the plaintiffs school has perfected its title by way of adverse possession?”

5. To substantiate the case, the plaintiffs had examined three witnesses and on their behalf, five documents had been exhibited. The defendant had examined four witnesses and on his behalf, five documents had been exhibited. Learned trial court, on a vivid analysis of the evidence on record, both oral as well as documentary and pleadings, came to hold that the consent of other coparceners was not taken. The scribe and the attesting witness of the gift deed-Ext.1 were not examined. The gift was not accepted by the donee, nor delivery of possession of the property was made. The gift deed had not been acted upon. The gift was taken from the defendant by giving an impression that the same was required to get the recognition and financial aid from the educational authorities. The stamp paper had not been purchased either by the plaintiff or defendant, but by one Makara Swain. The scribe had subsequently added the schedule and other averments inside the body of the deed in a different ink, but he had not made any endorsement or attested the same. The schedule property had been subsequently introduced. All the circumstances would show that the gift deed is void and never acted upon. The plaintiffs had no title over the suit land. Accordingly, issue No. 5 was answered in favour of the defendants. Learned trial court further held that there is no pleading with regard to adverse possession and, as such, the plaintiffs have not perfected title by way of adverse possession. Held so, learned trial court dismissed the suit.

6. Assailing the judgment and decree of the learned trial court, the plaintiffs had filed Title Appeal No. 14 of 2000 before the learned Addl. District Judge, Bhanjanagar. Learned lower appellate court came to hold that the defendant had suppressed the facts.