The court upheld the validity of a registered deed of gift, emphasizing that the Defendant's signature estopped him from disputing its execution, while also dismissing claims based on an unregistered Will for lack of evidence.

JUDGMENT :

D. Dash, J.

The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and preliminary decree passed by the learned District Judge, Bolangir in RFA No.9 of 2016. The Respondent as the Plaintiff had filed T.S. No.42 of 1998 in the Court of the learned Civil Judge (Junior Division), Loisingha.

The suit is for declaration of his right, title, interest and confirmation of possession over the suit land described in schedule ‘A’ of the plaint and for permanent injunction in the alternative for partition of land in schedule ‘B’ of the plaint. The Appellant was the sole Defendant in the said suit. The Trial Court decreed the suit preliminarily by declaring the Plaintiff to be entitled half share each over schedule ‘A’ and ‘B’ properties. This Appellant (Defendant) being the aggrieved by the said judgment and preliminary decree passed the Trial Court had carried the Appeal under section 96 of the Code, which has also been dismissed. Hence, the Second Appeal is at the instance of the Appellant who as the Defendant has suffered from the judgment and preliminary decrees passed by the First Appellate Court in confirming the judgment and preliminary decree passed by the Trial Court.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. Plaintiff’s case is that the suit land originally belonged to one Netra Jena who died issueless. After his death, his widow Tulasa succeeded to the said property of Netra Jena and she became the absolute owner in possession of the suit land. The Plaintiff and the Defendant are two brothers being the sons of one Gautam Jena. Netra Jena was their elder father. These two brothers were taking care of Tulasa and looking after her till her death. Being satisfied with the services of Plaintiff and Defendant, said Tulasa had executed registered deed of gift on 03.07.1982 gifting away the said properties to the Plaintiff and the Defendant. The Plaintiff and the Defendant accepted the deed gift of the land so made by Tulasa during her lifetime. It is stated that in order to avoid future litigation, the Plaintiff and Defendant amicably partitioned the suit land. During that partition schedule ‘A’ land came to be allotted to the Plaintiff. However, after the death of Tulasa on 08.07.1997, the Defendant forcibly occupied the suit house. So, the Plaintiff convened a meeting in the village to convince the Defendant that he should not do so. That move, however, proved futile. Therefore, the Plaintiff served a notice upon the Defendant through his Counsel claiming half share over the suit land. That having not been responded to by the Defendant, the Plaintiff filed the suit.

4. The Defendant coming forward to contest the suit in his written statement while not disputing the relationship and the fact that the property originally belonged to Netra Jena stated that the suit land was never partitioned at any point of time between the himself and the Plaintiff. It is also stated that Tulasa had never gifted the suit land to the Plaintiff and the Defendant. The Defendant asserted that said deed of gift is a forged one. It is the specific case of the Defendant that Netra Jena, the owner of the suit land had bequeathed the said property in his favour by executing an unregistered will on 18.03.1979. In view of that, the Defendant claims to be in possession of the suit land as the owner of the same from the time of death of Netra Jena and thus to have the exclusive r