JUDGMENT
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. The dispute in the instant writ petition relates to the rights of the parties to succeed to the agricultural land of Ram Adhar who died on 9.12.1981. Petitioners are sons of Dhunnu who was real brother of Ram Adhar. Petitioners claimed that firstly Ram Adhar had executed a registered gift deed nine days before his death i.e. on 30.11.1981 in their favour and secondly even in the absence of the gift deed they inherited the property after the death of Ram Adhar. Respondents 1 to 3 are sons of Bansh Raj. Their claim is that their deceased mother Chandgudi was daughter of Ram Adhar and Ram Adhar did not execute any gift deed on 30.11.1981 in favour of the petitioners hence respondents inherited the agricultural property in dispute belonging to Ram Adhar after the death of Ram Adhar.
3. Firstly the matter was agitated in mutation proceedings where it was decided in favour of respondents. Thereafter petitioners filed three title suits for declaration under Section 229-B of U.P.Z.A.&L.R. Act which were registered as suit Nos. 4/518, 5/519 and 6/520 Kishun and Ors. v. Hah Naraina and Ors. All the suits were consolidated and decided by Sub Divisional Officer, Aata, Kasya District Deoria. The Sub Divisional Officer/trial court decreed the suits on 24.5.1984 deciding both the points in favour of the petitioners. Trial court held the gift deed to be proved and valid and further held that Chandguddi mother of respondents was not the daughter of Ramadhar as Ramadhar had only one daughter who had died at the age of 11 years. Against the judgment and decree dated 24.5.1989 respondents in this writ petition filed three appeals being appeal nos. 528/D, 567/D and 568/D of 1989. Additional Commissioner (Administration) allowed all the appeals through judgment and decree dated 25.10.1996. Against the said judgment and decree petitioners filed three second appeals before Board of Revenue being Second appeals Nos. 3,4 and 5 of 1996-97 Shri Kishun v. Hari Narain. Board of Revenue dismissed all three appeals on 2.6.2004 hence this writ petition.
4. Learned Commissioner while allowing the appeals of the respondents held that the marginal witness of the gift deed dated 30.11.1988 i.e. Pauhari Saran could not properly prove the gift deed and there were several contradictions in his statement. It was also observed that the said witness did not even know the name of the writer of the deed and it was stated by him that he was at his house and was called therefrom for attestation and that he did not know anything regarding litigation in between Shri Kishun and Hari Narain (meaning thereby the litigation in respect of mutation). Appellate court also observed that the said witness did not identify the executant before the Sub-Registrar. The appellate court also held that even if it was assumed that RamAdhar had no issue then his nephews would have inherited the property hence there was no need to execute the gift deed. Appellate court also found that Ramadhar was ill at the time of execution of the gift deed and died within ten days therefrom. Appellate court also held that in mutation proceedings same courts had recorded finding that gift deed was not proved and the said findings had been approved by the Board of Revenue hence the said finding could not be brushed aside. First appellate court also found that the donor i.e. Ram Adhar did not accept the gift during his life time.
5. Under Section 122 of Transfer of Property Act it is provided that:
“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee.
Such acceptance must be made during the life time of the donor and while he is still capable of giving.
6. It has been held by Division Bench authority of Pata High Court reported in A.I.R. 1948 Patna 130 that mere possession of the gift deed by the donee will not be conclusive proof of the fact that the gift deed was accepted by him. In A.I.R. 1956 Bhopal 66 it has been held that the mere execution of a registered deed of gift cannot prove the consent or knowledge of the donee when there is nothing to show that the donee witnessed the deed of gift or was present at the time of registration. In this regard reference may also be made to A.I.R. 1974 Punjab 130 and A.I.R. 1995 Madras 415 (D.B.) wherein it was held that the signature of the donee at the time of execution and his presence at the time of its registration are sufficient to prove acceptance.
7. The First appellate court held that there was no evidence that donor accepted the gift during seven or eight days when he remained alive after execution of the gift deed. Under Section 122 Transfer of Property Act the donee is required to accept the gift and not the donor.
8. In the earlier part of its judgment the Additional Commissioner held that Chandguddi was the daughter of Ram Adhar and mother of the respondents. This finding was recorded on the basis of oral evidence of two witnesses and contrary inference drawn from the said statement by the trial court was set aside.
9. I do not agree with the two findings of the first appellate court. Firstly the learned Commissioner was not correct in holding that finding recorded in mutation proceedings could not be set aside in the regular suit under Section 229-B of U.P.Z.A.&L.R. Act unless there was some very strong basis for the same. Orders passed on mutation applications are summary in nature and subject to the result of the regular suit hence in the regular suit findings recorded in mutation proceedings cannot be considered.
10. The second finding of the first appellate court that donor was not shown to have accepted the gift after its execution and till his death is erroneous in law in the sense that under Section 122 of T.P. Act acceptance is to be of the donee and not of the donor.
11. However, even after setting aside these two findings judgment of the Additional Commissioner may be sustained. Additional Commissioner recorded a finding of fact that gift deed was not proved and Chandguddi was daughter of Ramadhar and mother of respondents.
12. If a judgment is based upon several findings and some of the findings are incorrect however, if even after ignoring the incorrect findings judgment can be sustained on the remaining findings which are not incorrect then it is not necessary to set aside the judgment. Similarly if a judgment is based on admissible as well as inadmissible evidence and it can be sustained on the basis of admissible evidence then it need not be set aside on the ground that inadmissible evidence was also taken into consideration.
13. Accordingly, in view of the above, there was no such error in the judgment passed by the first appellate court/Additional Commissioner on the basis of which judgment could be reversed and second appeal could be allowed by the Board of Revenue.
14. Board of Revenue therefore, rightly dismissed the second’ appeals.
15. Accordingly, I hold that ultimate judgment and decree passed by the first appellate court/additional Commissioner is correct even though some of the findings recorded in the judgment are not correct in law.
16. Accordingly, there is no merit in the writ petition hence it is dismissed.