The court emphasized the importance of the acceptance of a gift as defined in Section 122 of the Transfer of Properties Act and upheld the trial court's decision on the issue.

S.C. DAS, J.

1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the appellate judgment dated 11.07.2008 passed by learned Addl. District Judge (Fast Track Court), Kailashahar, North Tripura in Title Appeal No. 13 of 2008, whereunder the learned Addl. District Judge dismissed the appeal and upheld the judgment and decree dated 04.02.2008 and 08.02.2008 respectively passed by learned Civil Judge, Junior Division, Kailashahar in Title Suit No. 38 of 2005.

2. Heard learned counsel, Mr. D.K. Biswas for the appellants and learned counsel, Mr. P. Dutta for the respondents.

3. By order passed on 27.01.2009 the second appeal has been admitted by this Court on the following substantial question of law:

“Whether the learned trial court as well as the learned appellate court had the jurisdiction to decide an issue, which is pending before the High Court for decision i.e. the matter relating to Survivorship Certificate”

3.1. At the time of hearing on the submission of learned counsel of the appellants another substantial question of law has been formulated, namely—

“Whether the alleged gift by Exbt.7 was at all acted upon specially for non-acceptance of the gift by the alleged donee as prescribed under Section 122 of the Transfer of Properties Act.”

4. The second appeal has been filed against the concurrent findings of the trial Court and the first appellate Court. Pleadings of both side and the evidence have been elaborately discussed by the trial Court as well as the appellate Court. However, for the purpose of deciding the substantial questions formulated before this Court, the substance of the pleadings of both side is narrated hereunder for fair appreciation.

5. The appellants as plaintiffs (hereinafter mentioned as plaintiffs) instituted Title Suit No. 38 of 2005 seeking the following relief:

“ (A) Granting declaration that the plaintiff No. 1 is the exclusive owner possessor of the suit land of the 1st schedule below and further declaration that the suit deed described in the 4th schedule below is illegal, fraudulent, vague & unspecific, not acted upon and not binding upon the plaintiffs.

(B) Granting and issuing perpetual injunction restraining principal defendant Nos. 1 & 2 from entering into this suit land and from disturbing possession of the plaintiff No. 1 therein.

(C) Granting all other reliefs deemed fit and proper.

(D) Granting full costs of litigation.”

6. Respondent Nos. 1 and 2 and pro-respondent No. 4 (hereinafter mentioned as defendants) contested the suit by filing written statement and pro-respondent No. 3 did not turn up and did not contest the suit.

7. Plaintiffs, inter alia, contended that the suit land described in the Schedule 1, 2 and 3 of the plaint originally belonged to Matangini Suklabaidya. It is the case of the plaintiffs that plaintiff No. 2 is the daughter of Matangini Suklabaidya and plaintiff No. 1 is the daughter-in-law (son’s wife) of plaintiff No. 2. Pro-defendant Nos. 3 and 4 are also sons of plaintiff No. 2. The plaintiffs further contended that defendant Nos. 1 and 2 in no way relates to the plaintiffs. Matangini Suklabaidya died on 09.09.1993 leaving behind plaintiff No. 2 as her only heir and accordingly plaintiff No. 2 inherited the suit land and she transferred the suit land described in Schedule 1 (A) and 1 (B) to plaintiff No. 1 and the land of Schedule 2 and 3 were also transferred to plaintiff Nos. 3 and 4. It is contended by the plaintiffs that plaintiff No. 1 after purchase mutated the land of Schedule 1 (A) in her name but when she applied for mutation of the land described in Schedule 1 (B), the defendant No. 1 filed objection contending that Matangini Suklabaidya by a registered Gift Deed No. 1715 dated 12.03.1982 gifted 0.80 acres of land to defendant No. 1 and therefore the mutation was not allowed and it was kept pending.