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3. The trial court upon appraisal of evidence on record, decreed the suit in part and rescinded the gift deeds to the extent of 2/3rd share. It would appear that Smt. Chandrawati Devi plaintiff, who was brought on record in the wake of death of Muttur Das, original plaintiff alone preferred civil appeal assailing that part of the decree by which suit was dismissed to the extent of 1/3rd share of defendant No. 1. The lower appellate court allowed the appeal and pronounced the gift deeds void and in consequence, directed the Sub-Registrar concerned for compliance of the judgment. It is in this backdrop that present second appeal has been filed by Smt. Nirmala Devi.

(3) Whether judgment of the lower appellate court is vitiated in law on account of ignoring all oral and documentary evidence of the parties from consideration?

I have heard Sri Sankatha Rai, appearing for the appellant and Sri Faujdar Rai appearing for the respondents 2 and 3. The main-stay submissions of learned counsel for the appellant is that the judgment of lower appellate court is erroneous inasmuch as it is mainly founded on admission of defendants 2 and 3 in their pleading and proceeded erroneously to hold that the admission of defendants 2 and 3 having joint interest in the suit property, shall be deemed to be an admission of defendant No. 1 also and also that the plaintiff need not prove her plaint case. The learned counsel assailed the judgment on the count also that the lower appellate court did not reckon with any evidence of the parties in proper perspective and that it has also not recorded any finding even on the question of acceptance of gift though it has been tangentially referred to in the judgment. The learned counsel also attacked the finding arguing that the lower appellate court erred in holding that as gift deed was without any consideration, it is void in terms of Section 25 of the Contract Act. The learned counsel also placed credence of a decision of this Court in Smt. Phuljhari Devi v. Mithai Lal and Ors., . Per contra, Sri Faujdar Rai, learned counsel representing the respondents contended that the finding of facts recorded by the lower appellate, court however erroneous it may be, cannot be interfered with in second appeal. He further contended that the admission of defendants 2 and 3 whose interests are common in the gift deed was rightly considered by the lower appellate court and judgment and decree of lower appellate court cannot be excoriated as unsustainable in law. The learned counsel also called in aid the decision in Paras Ram v. Dayal Das and Anr., ; Mt. Ramjhari Kuer and Ors. v. Deyanand Singh and Ors., AIR 1946 Pat (33) 278 ; Ram Pukar Singh and Ors. v. Sita Ram Mahaton and Ors., and Harihar Rajguru Mohapatra and Anr. v. Nabakishore Rajaguru Mohapatra and Ors., to bolster up his case.

6. I have been taken through the decision of the lower appellate court. There is no gainsaying that the lower appellate court proceeded on the basis that an admission made by defendants 2 and 3 shall be deemed to be an admission of defendant No. 1 also and in this connection referred to Section 18 of the Evidence Act and in consequence, held that plaintiff need not prove her plaint case. It would further transpire that on the basis of this presumption the lower appellate court also called in aid Section 25 of the Contract Act and converged to hold that as there was no consideration for execution of the gift deed and regard being had to the fact that defendant No. 1 was not born of the loins of Muttur Das, and therefore, there could be no love and affection, the gift deeds were void. The judgment further evinces that the lower appellate court also referred to augments of learned counsel for the appellant about non-acceptance of gift deeds and relying upon a case of Baby Ammal v. Rajan Asaray, 1997 SCR 84, held that acceptance of gift deed was also not proved.