JUDGMENT :

Dr. A.K. Rath, J.

1. This is an appeal by the defendant against the judgment of the learned Additional District Judge, Puri reversing the judgment of the learned Additional Sub-Judge, Puri.

2. The dispute pertains to a house situate in mouza-Kumbharpara in Puri town. The respondent as plaintiff instituted the suit for declaration of title. The case of the plaintiff is that the suit house originally belonged to Nilakantha Mohanty, maternal grandfather. His maternal grandfather donated the house to him and his brother, Banshidhar, by means of a registered gift deed dated 31.5.1926, Ext.1, and delivered possession to them through their parents, since they were minors. The defendant was not born at the relevant point of time. His brother, Banshidhar, died within a year of execution of the gift deed. His eight annas interest passed on him by way of survivorship. He became the absolute owner thereof. It was pleaded that the defendant was residing in the village. He became ill in the year 1968 and came to Puri town for treatment. He stayed in the house with his brother. Since the defendant raised objection for construction of a pucca kitchen on the vacant portion of the house, he instituted the suit seeking the reliefs mentioned supra.

3. The defendant entered contest and filed written statement. The case of the defendant is that the house had been donated to his parents although the gift deed had been executed in the name of his two brothers. After death of their parents, he along with the plaintiff succeeded to the property having eight annas interest each and stayed there. During life time of the parents, the house was partitioned in the year 1960. The western half fell to his share and the eastern half fell to the share of the plaintiff.

4. Learned trial court struck five issues. Parties led evidence. Learned trial court came to hold that though the gift deed was executed in favour of the plaintiff, but the same had not been acted upon. The deed was nominal one. No title was passed. The plaintiff and defendant are the joint owners in possession of the house. There was no partition between the parties. It further held that on the death of the maternal grandfather of the parties, the disputed house devolved upon their mother. On the death of their mother, both the parties as well as their sister inherited the same. Held so, it dismissed the suit. The plaintiff challenged the judgment and decree before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional District Judge, Puri and renumbered as T.A. No.2/63 of 1979/1978. The appeal was allowed.

5. The second appeal was admitted on the following substantial questions of law.

“If upon the death of the donee, the property devolved on his legal representatives or according to the recitals in the deed of gift.”

6. Heard Mr. Gautam Mukherji, learned counsel for the appellant and Mr. N.K. Sahu, learned counsel for the respondents.

7. Mr. Mukherji, learned counsel for the appellant submitted that the gift deed dated 31.5.1926, Ext.1, was a nominal one. Possession of the property was not delivered to the donees. The donees were six years and two years respectively. The grandfather had kept the gift deed. The plaintiff had not taken steps to mutate the land in his favour. Their mother used to pay monthly tax. The gift deed was retained by the donor. He further contended that after death of Banshidhar, his share does not devolve upon the plaintiff. There was a clause in the gift deed that in case of death of the donees during life time of their parents, the property will revert back to the parents. There was no recital that in case of death of one of the donees, the entire property will devolve upon the other donee. After death of Banshidhar, his share devolved upon all heirs of the mother. In the absence of any evidence regarding delivery of possession and subsequent conduct of parties, it cannot be said that the gift deed has been acted