JUDGMENT
P.K. Misra, J.
1. Defendant No. 1 has filed this appeal against the decision of the Subordinate Judge, Phulbani, decreeing in part the suit declaring that defendant No. 1 has no right in the suit property conveyed to him by defendant No. 2 in a registered deed of gift dated 11.7.1977 and permitting the plaintiff to recover possession of the disputed land.
2. Plaintiff-respondent No. 1 filed a suit for declaration that defendant No. 1 has no right over the disputed property, for recovery of possession and for permanent injunction. Chandra Dalabehera and Buti Dalabehara were two brothers. Plaintiff is the daughter of Chandra Dalabehera through first wife, whereas defendant No. 2 is the second wife of Chandra Dalabehera. Defendant No. 1 is the grandson of Buti Dalabehera. As per the plaintiff’s case, the disputed property belonged to Chandra Dalabehera and was jointly inherited by plaintiff and defendant No. 2 after the death of Chandra Dalabehera in the year 1976. There was no partition between the plaintiff and. defendant No. 2 and both of them were continuing in joint possession of the disputed land. Since Chandra Dalabehera had died without a male issue, his agnates put pressure on defendant No. 2 and forced her to execute some deed involving the suit property. Defendant No. 2 who is an illiterate, rustic and ignorant woman became a prey in the hands of those persons who took her to the scribe and managed to get a deed of gift executed in the name of defendant No. 1 who was hardly a boy of 15 to 16 years old at that time. Defendant No. 2 had no independent advice. She was specifically told that she was executing a document that would come into effect after her death. The document was not acted upon. The plaintiff was not aware of the execution of such document for several years and came to know of such document in the previous year to the suit when defendant No. 1 sent information to her suggesting for execution of a similar document in his favour. The Bhadralok who had come to her had brought the deed and left it with her for consultation with her husband. The plaintiff on being aware of such gift deed discussed about the same with defendant No. 2 and subsequently defendant No. 2 executed a deed of cancellation on 6.5.1980. However, when the same scribe was contacted, the scribe did not mention about the fraud and coercion practised on defendant No. 2 in the matter relating to execution of the gift deed. Thereafter, defendant No. 1 initiated a proceeding Under Section 144, Code of Criminal Procedure, against the persons having no concern with the disputed property. The plaintiff and defendant No. 2 coming to know of this proceeding filed application for rescinding the ex parte order. However, the Magistrate attached the disputed land and the matter was carried to the revisional Court. However, since defendant No. 1 was bent upon creating trouble over the disputed land, the suit was filed for the reliefs already indicated. In the plaint, it was specifically mentioned that defendant No. 2 was equally interested in the disputed property and could have joined as plaintiff, but she did not do so due to her old age, invalidity and low financial condition. After filing of the suit, Lot No. 1 of Schedule-A of the plaint was deleted by way of amendment on the footing that the said land had been sold away by plaintiff and defendant No. 2 prior to the filing of the suit. Prayer for recovery of possession was included.
3. Defendant No. 1 contested the suit by filing written statement. Apart from taking the technical pleas like under-valuation, payment of insufficient court-fee, non-joinder of necessary parties and question of limitation, defendant No. 1 pleaded that the disputed property belonged to defendant No. 2 absolutely and plaintiff had no interest in the same at the time when the gift was made. It was further-pleaded that the gift deed had been validly and voluntarily executed by defendant No. 2. The disputed property was purchased arid/or acquired by late Chandra Dalabehera in favour of defendant No. 2 and late Chandra Dalabehera had no interest in the suit property and defendant No. 2 was possessing the same as absolute owner. Subsequently, on the instigation of some of the enemies of the family, a deed of Nadabi Patra was taken away from defendant No. 2 without her knowledge and consent and the said Nadabi Patra was invalid and did not create any title in favour of Chandra Dalabahera and defendant No. 2 was the absolute and sole owner of the disputed property. In the alternative, it was pleaded that even assuming that Chandra Dalabehera was the owner of the disputed property, after his death his wife had twelve annas interest and the plaintiff could claim only four annas share and the deed of gift must be taken to be valid to the extent of twelve annas share of defendant No. 2.
4. On the aforesaid pleadings, the following issues were framed by the trial Court :
“1. If the gift deed dated 11.7.1977 executed by the defendant No. 2 in favour of defendant No. 1 is genuine and binding on the plaintiff ? If the defendant No.l has acquired a valid title on the basis of the deed ?
2. If the suit is barred by limitation ?
3. If the suit is properly valued and court-fee paid is sufficient?
4. If the plaintiff has any interest over the suit land ?
5. To what relief if the plaintiff is entitled ?
5. Though defendant No. 2 did not file any written statement, she was examined as P.W. 1 in support of the plaintiff’s case. Besides, the plaintiff examined herself as P.W. 2 and two other witnesses in support of her claim. Defendant No. 1 examined the scribe of the deed of gift and the deed of cancellation as D.W. 1 and examined herself as D.W. 2 and two other witnesses in support of his case.
6. The trial Court under Issues 1 and 4 while negativing the plea of defendant No. 1 regarding the voluntary execution of the deed of gift, held that the deed of gift being a conditional one and the condition having not been fulfilled by the donee, it had been validly cancelled by defendant No. 2 and the deed of gift was not binding upon the plaintiff and defendant No. 1 did not acquire any right on the basis of the deed of gift. Under Issue No. 2, it was held that since the plaintiff had no knowledge of the deed of gift, the suit filed by her was within time. Issue No. 3 relating to valuation of the suit was not pressed. On the aforesaid findings, the trial Court decreed the suit in part and found that defendant No. 2 had no right to gift the disputed property in favour of defendant No. 1 and the deed of gift having been subsequently cancelled, no right, title and interest devolved upon defendant No. 1 and prayer for recovery of possession was allowed. However, the prayer for injunction was refused.
7. In this appeal, it is contended by the counsel for the appellant that some of the properties were the properties of defendant No. 2 a id plaintiff had a right to challenge the validity of the deed of gift relaf ing to the properties which stood in the name of defendant No. 2. In this connection it is also contended that in respect of properties of Chandra Dalabehera, the deed of gift should be considered to be valid so far as it relates to the interest of defendant No. 2 in the said properties. Exts. 4, 5, 6 and 7 are the Records-of-Rights. It is true that in Ext. 4 the properties have been recorded in the maiden name of defendant No. 2, whereas in Exts. 5, 6 and 7, the properties are recorded in the name of Chandra Dalabehera. It is contended by the counsel for the appellant that properties recorded under Ext. 4 should be considered to be the separate properties of defendant No. 2 and the deed of gift must be taken to be valid in respect of the properties recorded in Ext. 4. Though this contention appears to be attractive on the face of it, on closer scrutiny such a contention cannot be accepted. Defendant No. 1 is claiming on the basis of the gift deed wherein it is specifically recited that the properties belonged to Chandra Dalabehera. Defendant No. 2 while examined as P.W. 1 has stated that Chandra Dalabehera was the owner of all the properties by virtue of the Nadabi. As such, in view of the recitals in the gift deed as well as the recitals in the Nadabi and the statement of defendant No. 2 herself, it cannot be said that the properties recorded in the name of defendant No. 2 were the exclusive properties of defendant No. 2. It must be taken that the properties belonged to Chandra Dalabehera and on his death the properties devolved upon his widow (defendant No. 2) and daughter, the plaintiff, in equal proportion.
8. It is the case of the plaintiff that the deed of gift had been obtained fraudulently and as such is not binding on defendant No. 2 as well as plaintiff. Defendant No. 2 has not specifically challenged the due execution of the deed of gift. In the deed of cancellation, it is not indicated that the deed of gift had been obtained fraudulently. On the other hand, it has been recited that the donee had not complied with the condition in the deed of gift regarding maintaining the donor, that is to say, defendant No. 2, and as such the deed of gift was being cancelled. Even in evidence, defendant No. 2 has not Specifically stated anything about the alleged fraud in the matter of execution of the deed of gift. The plaintiff is not a party to the deed of gift. There is no doubt that the deed of gift so far as it relates to plaintiff’s interest in the disputed properties is not binding on her. However, the deed of gift if it is otherwise found to be genuine and valid is binding on defendant No. 2, particularly when defendant No. 2 has not challenged the validity of the gift deed. In the absence of any challenge by defendant No. 2, during her life- time the plaintiff had no right to challenge the validity of the gift deed executed by defendant No. 2. In the present case, the due execution of the deed of gift has been proved by the contesting defendant through the evidence of the scribe. Though defendant No. 1 was legally a minor at the time of execution of the deed of gift (being aged abut 16 years), it is apparent that the gift had been accepted. As apparent from the decision reported in 39 Indian Cases, 46 (Firm of Ganeshdas Bhiwaraj v. Suryabhan) a gift can be accepted by a minor. In the present case, from various facts and circumstances, it is apparent that the gift had been accepted by defendant No. 1 even though he was aged about 16 years at the time of execution of the deed of gift. Once the deed of gift had been validly executed and had been accepted, it became operative and defendant No. 2 was divested of her interest in the property. The subsequent cancellation of the deed of gift cannot have the effect of nullifying the deed of gift in view of the specific provision contained in Section 126 of the Transfer of Property Act.
9. From the aforesaid discussion, the inevitable conclusions are as follows :
(i) The plaintiff and defendant No. 2 succeeded to the properties of Chandra Dalabehera after his death in 1976 as tenants-in-common;
(ii) the plaintiff had no locus standi to challenge the validity of the deed of gift. However, the deed of gift was not binding on the interest of the plaintiff in the disputed properties;
(iii) The deed of gift had been Validly executed and accepted and the deed of cancellation did not have the effect of nullifying the deed of gift which was already acted upon; and
(iv) The deed of gift is binding to the extent of interest of defendant No. 2, that is to say, half interest in the disputed properties.
10. During pendency of the appeal, defendant No. 2 has qxpired. In view of the provisions contained in Section 15 of the Hindu Succession Act, it is apparent that the plaintiff is the sole legal representative of defendant in respect of the properties inherited by defendant No. 2 from her husband. Since the deed of gift is found to be binding so far as interest of defendant No. 2 is concerned, the plaintiff is entitled to a decree for declaration of her right over haif of the disputed properties. However, she is not entitled to recover the entire properties and is entitled to recover half of the disputed properties. Since plaintiff and defendant No. 1 are the only persons entitled to remain in possession, in the interest of justice, it is necessary to mould the relief and pass a preliminary decree for partition. The plaintiff is entitled to get possession of half of the disputed properties. Such a course is adopted keeping in view the principle enunciated in the decision of this Court reported in 7977 (1) CWR 121 (Bui Sahuani and Ors. v. Seshadev Sahu and others).
11. In the result, the first appeal is allowed in part and the decree of the trial Court is modified. Preliminary decree for partition is passed declaring half interest of plaintiff and half interest of defendant No. 1 in the properties which are the subject-matter of the gift deed. There will be no order as to costs in any of the Courts.