The main legal point established in the judgment is the interpretation of the terms and conditions of the family settlement deed dated 5th August, 1967, and the finding that it was a family settlement deed and not a will as treated by the appellate court.

Dinesh Gupta,J.

This second appeal is preferred against the judgement dated 15th September, 1980 passed by IInd Civil Judge, Varanasi in Civil Appeal No.404 of 1979 arising out of judgement dated 31st August, 1979 passed by Munsif, Hawali, Varanasi in Original Suit No.565 of 1975.

2. The brief facts, which give rise to this appeal are that the plaintiffs-appellants (hereinafter called as the "appellants") filed Original Suit No.565 of 1975 against the defendants-respondents (hereinafter called as the "respondents") for the relief of cancellation of gift deed dated 16.7.1975.

3. The allegations made in the plaint were that the plaintiff no.1 was son of Bharosh and plaintiff no.2 was the son of Khemai. The respondent no.1 Smt. Umrai was widow of Mangroo and the respondent no.2 was the daughter of respondent no.1 Smt. Umrai. The plaintiff no.1 and the father of the plaintiff no.2 were sons of one Bharosh, who expired about 32-35 years before filing of the suit and after the death of Mangroo, a family settlement arrived at between the plaintiffs and the respondent no.1 Smt. Umrai to this effect that the plaintiff will remain the owner of ancestral properties left by Mangroo and the respondent no.1 Smt. Umrai will have right of maintenance alone, even the share of Mangroo and she would have no right to transfer the share of Mangroo. Later on a family settlement reduced into writing and was registered on 5.8.1967.

4. It was further alleged that in spite of said family settlement, the respondent no.1 Smt. Umrai executed a gift-deed in favour of her daughter on 16.7.1975. The plaintiffs have no option left but to file the suit for cancellation of above gift-deed dated 16.7.1975.

5. The suit was contested by the defendants on the ground that in fact no family settlement was arrived at between the parties and the family settlement deed dated 5.8.1967 is a forged document and the respondent no.1 Smt. Umrari was full owner of 1/3rd share of Mangroo and her name was recorded there that she had every right to execute the impugned gift deed in favour of the respondent no.2.

6. After considering the evidence available on record, the trial court decreed the suit of the plaintiffs and cancelled the gift deed dated 16.7.1975 executed by respondent no.1 in favour of the respondent no.2.

7. Feeling aggrieved, the respondents preferred an appeal, which was registered as Civil Appeal No.404 of 1979 and was transferred to the court of IInd Civil Judge, Varanasi, who allowed the appeal and dismissed the suit of the appellants vide its order dated 15th September, 1980.

8. Feeling aggrieved, the appellants preferred this second appeal before this Court.

9. At the time of admission of the appeal, the following substantial questions of law was framed by this Court:

(i) Whether on the terms and conditions imposed through registered family settlement dated 5th August, 1967 Ext.2, Smt. Umrai was entitled to transfer the property in dispute through gift-deed dated 16th July, 1975 in favour of respondent no.2?

(ii) Whether bilateral document of family settlement dated 5th August, 1967 was misconstrued by the lower appellate court as will executed by Smt. Umrai and the entire judgement of the lower appellate court due to the aforesaid misconstruction of the title deed is vitiated by manifest error of law?

(iii) Whether the family settlement dated 5th August, 1967 would be deemed to have been rescind by executing the gift-deed dated 16th July, 1975 by Smt. Umrai?

10. Notices were issued to the respondents and the lower court record was also requisitioned.

11. Heard Shri Ashok Kumar Singh, holding brief for Dr. V.K. Rai, learned counsel for the appellants and Shri Anil Kumar Aditya, learned counsel for the respondents.

12. Learned counsel for the appellants submitted that both the courts below have recorded a categorical finding that the registered agreement amounting to family settlement dated 5th August, 1967, was duly executed by Smt. Umrai respondent