JUDGMENT : S.C. Mohapatra, J. - Plaintiffs 2 & 3 and legal representatives of Plaintiff No. 1 are Appellants against dismissal of a suit for declaration of title In this appeal, Appellant No. 1 has expired and memorandum has been filed that he has left behind, no legal representatives for which his name has been expunged. 2. Judhistir Parida husband of Plaintiff No. 1 was an employee under the ruler of Sonepur. He has acquired about 34 acres of agricultural land in village Dhobamunda which is about 2 to 3K. Ms. from Sonepur town. He has also a house on land measuring about 10 decimals in Sonepur town. All these properties were acquired in name of his wife Plaintiff No. 1. Defendant is a man of village Sankara in Binka Police-Station. He has a house at Majhipada of Sonepur Town which is a different area than the area in which Judhistir and his wife reside in their house in Sonepur town. Village Sankara is 10 to 12 miles from Sonepur intervened by Anga river. Defendant is a Peon in the Block Development Office since about 5 to 6 years before the date of his deposition and has a betel shop in Sonepur town. Defendant was going to worship in Samalai temple near house of Plaintiff No. 1 every day and was visiting the house of Judhistir from his childhood. In the aforesaid background, when Judhistir was more than 70 years and was suffering from cancer and Plaintiff No. 1 was also sufficiently aged, she executed a deed of gift of her entire property in village and the house at Sonepur on 28-9-1973. On the same day, Defendant executed an agreement to maintain Plaintiff No. 1. The deed of gift was registered on the next day which is in custody of Defendant and the agreement executed by Defendant is in custody of Plaintiff No. 1. Within a few days of execution of the deed Judhistir expired. There after, troubles started. Plaintiff No. 1 cancelled the deed of gift on 10-7-1974 by a registered instrument. Shortly after such cancellation 04-9-1974 Plaintiff No. 1 executed a Will in favour of Plaintiff No. 3. In the same year, Defendant initiated a proceeding u/s 145, Code of Criminal Procedure, against Plaintiff No. 1 and Plaintiff No. 3, claiming to be in possession of the land. Shortly after such cancellation 04-9-1974 Plaintiff No. 1 executed a Will in favour of Plaintiff No. 3. In the same year, Defendant initiated a proceeding u/s 145, Code of Criminal Procedure, against Plaintiff No. 1 and Plaintiff No. 3, claiming to be in possession of the land. Preliminary order was passed and the agricultural land was attached : On account of this attachment of the property when evidence was being recorded in the 149, Code of Criminal Procedure proceeding, Plaintiff No. 1 and Plaintiff No. 3 with Plaintiff No. 2, filed a suit for declaration of title in respect of the property on 5-10-1977, claiming that Plaintiff No. 2 is the Thikadar in respect of the disputed land under Plaintiff No. 1 3. Case of Plaintiffs is that the land belongs to her, Defendant approached Plaintiff No. 1 for execution of a power of attorney so that her properties can be managed by him and she and her husband would be maintained by him. Believing that a power of attorney was being executed by her, Plaintiff No. 1 signed a document scribed on stamp paper and got it registered. She never intended to donate her entire property. On basis of such a document Defendant has no title. She was continuing in possession till the same was attached u/s 145, Code of Criminal Procedure 4. Case of Defendant is that from his childhood he is acquainted with Plaintiff No. 1 and he was taking care of Plaintiff No. 1 and her husband, who were treating him as his son. He was at times advancing money and was also purchasing medicines for them. Therefore, Plaintiff No. 1 was pleased with him and transferred her property by gift with the hope that the will maintain her and her husband property for rest of the life and enjoy the property since Plaintiff No. 1 and her husband were childless. He was in possession of the property after the gift and Plaintiff after donating the property which was accepted by him cancelled it, which is of no effect. He was acquired valid title over the property. 5. Before trial, Plaintiff No. 1 died during pendency of the suit. Two nephew of her husband were substituted in her place to continue the suit along with Plaintiff Nos. He was acquired valid title over the property. 5. Before trial, Plaintiff No. 1 died during pendency of the suit. Two nephew of her husband were substituted in her place to continue the suit along with Plaintiff Nos. 2 and 3 as husband of Plaintiff No. 1 had died on 1-10-1973 three days after the execution of the need by Plaintiff No. 1. 6. Plaintiff examined nine witnesses and proved documents marked Exts. 1 to 10 which include the agreement executed by Defendant (Ext.7) cancellation of the deed executed by her (Ext.6) Will in favour of Plaintiff No. 3 (Ext.4) lease deeds executed by Plaintiff No. 2 in favour of Plaintiff No. 1) (Ext.3 series) and depositions of witness in the 145, Code of Criminal Procedure proceeding, Defendant examined five witnesses and proved documents marked Exts. A to Q which include the registered deed of gift (Ext.A/6), treasury challan, levy notice, receipts by Plaintiff No. 1 in token of receiving paddy and money and evidence of Witness in proceeding u/s 145, Code of Criminal Procedure Considering these materials trial court held that the need of gift is valid and Defendant has title to the property. 7. Validity of the deed of gift (Ext. A/6) is the main consideration in this appeal. If the deed of gift would be held as valid, dismissal of the suit would be justified. In case, deed of gift would be held to be invalid, a further question would arise whether a declaration can be given in the present case in favour of substituted Plaintiff Nos. 2 and 3. 8. Assuming that the deed of gift is invalid, Plaintiff No. 2 is only a Thikadar. He is not a party to the proceeding u/s 145, Code of Criminal Procedure He cannot get a simple declaration in this suit. He has to work out his remedy under the Orissa Land Reforms Act where his status as tenant (Thikadar) under Plaintiff No. 1 can be decided and appropriate relief can be granted. Section 67 of the aforesaid Act would bar a suit since relief would be available to Plaintiff No. 2 under that Act. Suit by Plaintiff No. 2 is dismissed as not maintainable on this short ground 9. Section 67 of the aforesaid Act would bar a suit since relief would be available to Plaintiff No. 2 under that Act. Suit by Plaintiff No. 2 is dismissed as not maintainable on this short ground 9. Plaintiff No. 3 is a party to the proceeding u/s 145, Code of Criminal Procedure Therefore, being interested in the suit, on the basis of the Will (Ext.4) executed in his favour by Plaintiff No. 1 he can get a declaration of title of Plaintiff No. 1 so that he may acquire valid title after death of Plaintiff No. 1 if the Will is genuine. However, he could not have filed a suit independently during life time of Plaintiff No. 1 as he acquired no interest in the suit property during life time of Plaintiff No. 1. After death of Plaintiff No. 1 during pendency of the suit, question of validity of his title would have to be considered vis-a-vis the legal representatives of Plaintiff No. 1 some of whom have been substituted. In such a situation, the suit is to be disposed of with a declaration of title of deceased Plaintiff No 1, leaving the Plaintiff's inter se to work out their remedy in a separate suit as entering into inter se title of Plaintiff would amount to misjoinder of causes of action. 10. Coming to the main question of validity of the gift deed as provided u/s 122 of the Transfer of Property Act, gift is transfer of property made voluntary and without consideration by one person called doner to another called the donee and accepted by or on behalf of the donee. Such acceptance must be made during the life of the Plaintiff and while he is still capable of giving. u/s 123 of the Act, for the purposes of making a gift, a deed is to be executed to be signed by on behalf of the donee and attested by at least two witnesses. Such acceptance must be made during the life of the Plaintiff and while he is still capable of giving. u/s 123 of the Act, for the purposes of making a gift, a deed is to be executed to be signed by on behalf of the donee and attested by at least two witnesses. Manner of attestation has been provided in Section 3 of the Act which means that each witness has seen that executed has signed or affixed his mark to the instrument or has been signed by some other person in the presence and by the direction of the executant or has received a personal acknowledgment or acknowledge his mark or of the signature of such other person and each of the witness has signed the instrument in presence of the executant. Since Plaintiff No. 1 has signed the deed, which is registered, it is to be examined. (1) Whether Plaintiff No. 1 executed the instrument voluntarily. (2) Whether the instrument is for consideration. (3) Whether it has been attested. (4) Whether the gift has been accepted. 11. Point (1). Case of Plaintiff is that Defendant obtained the deed executed by Plaintiff No. 1 representing her that she is required to execute a power of attorney. Case of Defendant on the other hand is that Plaintiff No. 1 who intended to execute a deed of gift and with full knowlege purchased stamp paper from treasury and instructed the scribe, requested witnesses executed the deed of gift and got it registered after which obtained the registered document and over the same and delivered possession. Husband of Plaintiff No. 1 also signed the deed of gift. 12. Voluntrainess of a person is a mental act which is to be gathered from surrounding circumstances including conduct of parties. Plaintiff No. 1 is an old lady aged about 70 years at the time of execution of the deed of gift. Her husband was suffering from cancer. In fact, he died two days after execution of the deed of gift where his signature appears. Defendant is not a relation of Plaintiff No. 1 or her husband. He belongs to a different caste. He also does not belong to the same basti where Plaintiff No. 1 was residing. They are of two different villagers one being at a long distance from the other. Defendant is not a relation of Plaintiff No. 1 or her husband. He belongs to a different caste. He also does not belong to the same basti where Plaintiff No. 1 was residing. They are of two different villagers one being at a long distance from the other. In the gift deed originally the entire property of Plaintiff No. 1 was included. Before registration by correction the house at Sonepur was excluded. Simultaneously, with execution of deed of gift. Defendant executed an agreement (Ext.7) in favour of Plaintiff No. 1. This is the background on which evidence is to be assessed to come to a conclusion whether the gift was voluntary. 13. As revealed from the deed of gift itself, Plaintiff No. 1 executed the document in favour of Defendant only on the ground that Defendant No. 1 is known to Plaintiff No. 1 and her husband from childhood and was taking their care looking after them. Plaintiff No. 1 was not available by the time evidence was recorded to accept or deny this statement in the deed of gift. In the deed for cancellation (Ext.6) dated 10.7.1974 she has clearly stated that the deed of gift was not voluntary and she came to know that Defendant had obtained the deed of gift although on condition that Defendant would take care, she was influenced to execute a power of attorney. Plaint No. 1 being an old lady having no offspring whose husband was suffering from cancer, it is natural that her mental condition would be very weak at that time. When a document was executed by an old lady in such circumstance, the person who gets benefit under the document is to satisfy the Court by clear and cogent evidence that the document was executed voluntarily. All circumstances from the stage of acquaintance with the lady till the document was handed over the possession handed over as alleged are to be proved in detail. 14. D.W. 1 stated that he knew Plaintiff No. 1 from his childhood. In his examination-in-chief he has not described how he knew her from childhood. In his deposition as First Party in the proceeding u/s 145 Code of Criminal Procedure. (Ext. 8) in cross- examination he stated: Netromoni and Judhistir Bohidar are not our caste man. I had no relation with them till the date of gift. Netromoni and Judhistir Bohidar are of different padas. In his deposition as First Party in the proceeding u/s 145 Code of Criminal Procedure. (Ext. 8) in cross- examination he stated: Netromoni and Judhistir Bohidar are not our caste man. I had no relation with them till the date of gift. Netromoni and Judhistir Bohidar are of different padas. Sripati Misra one of the witness of the deed is my neighbour. Also Basudeb Negi remains in our pada. Dulagobinda belongs to Jhinki. He has no relation neither with the parties nor with the lands. I called him on the date of writing to be a witness. From date of gift, I am respecting Netramoni as mother. Previously I had no connection with her.... When this statement was brought to notice of Defendant in his cross-examination, he stated: It is not a fact that I had stated there that I had no connection with them till the gift deed. Instead of explaining the statement when Defendant denies the same, I have grave doubt in my mind about the truthfulness of this witness. In such backgound when he stated in his deposition the Netromani had no cash in hand, his evidence that intending to execute deed of gift Netramoni purchased the stamp becomes doubtful. In the statement in 145, Code of Criminal Procedure proceeding he stated that he accompanied Netramoni at the time of purchase of stamp. In his deposition, Defendant has suppressed this fact and stated Netramoni herself purchased the stamp. Although in 145, Code of Criminal Procedure proceeding he started that he does not know wherefrom Netramoni got the money to purchase stamp, in suit he denied to have made such statement. From the nature of reply given, I am satisfied that at the stage of purchase of stamp also Defendant was prevailing upon Plaintiff No. 1 and her case that she did not know that she was going to execute a deed of gift appears to be acceptable. 15. Next-stage is scribing of the deed of gift on stamp paper purchased by Plaintiff No. 1 when Defendant was with her Stamp paper in two sheets were obtained from treasury on 25.9.1973. Although Defendant has taken case to prove the chalan signed by Plaintiff No. 1 for deposing the money in the Treasury, no step has been taken to prove any document indicating the person who received the stamp from the Treasury. Although Defendant has taken case to prove the chalan signed by Plaintiff No. 1 for deposing the money in the Treasury, no step has been taken to prove any document indicating the person who received the stamp from the Treasury. No person from treasury has been examined to prove that it is Plaintiff No. 1 who received the document. There is no evidence as to in whose custody the stamp remained from 25.9.1973 to 28.9.1973. Scribe examined has not stated who handed over the stamp to him. Defendant was always with the Plaintiff No. 11. Scribe stated that after execution of the document he handed over the same to Plaintiff No. 1 and Plaintiff No. 1 at his end handed over the same to Defendant. He stated that parties came to him six days prior to date of writing the document and he talked to them. He stated that he did not see any money in hand of Plaintiff No. 1 when she went to purchase the stamp. He does not say if Plaintiff No. 1 handed over any document from which details of the lands were indicated in the deed. Presence of Defendant always with Plaintiff No. 1 who is an old lady as is clear from the statements leads me to an inference that she had no chance to have any independent advice and was under influence of Defendant. This is a circumstance to come to conclusion that execution of the deed of gift was not voluntary. 16. Delayed registration is another circumstance. Document was in possession of Defendant after execution. If the execution was complete by 2 p.m. as stated by Defendant, there is no reason why the same was not executed on the same day and was executed on the next day. If at all the time fixed for presentation of documents for registration in Sub-Registrar's Office would have been over, special fee could have been paid to get the document executed on the same day. No explanation which is acceptable has been given by Defendant. 17. As regards presence of husband of Plaintiff No. 1 who signed the deed of gift it is stated that he was from 11 a.m. to 2 p.m. in Court premises. Husband of Plaintiff No. 1 was suffering from cancer. He died three days after execution of document. No explanation which is acceptable has been given by Defendant. 17. As regards presence of husband of Plaintiff No. 1 who signed the deed of gift it is stated that he was from 11 a.m. to 2 p.m. in Court premises. Husband of Plaintiff No. 1 was suffering from cancer. He died three days after execution of document. In absence of any evidence that the disease suddenly developed to become fatal, it can be inferred that with the pain and suffering he had no balance of mind. There is also no evidence that Plaintiff No. 1 took independent advice for donating the entire property. Even if it is accepted that the deed of gift was signed by husband of Plaintiff No. 1. in the facts and circumstances, I am satisfied that the same would not be a piece of evidence to come to conclusion that Plaintiff No. 1 had independent advice before deciding to make a gift and the same was voluntary. Added to it, gift to entire property including the house which was excluded after the document was scribed is a circumstance in favour of undue influence and story of misrepresentation as made put Plaintiff No. 1 is probable. 18. A gift is required to be without consideration. In this case Ext. 7 the agreement in stamp paper shows that Defendant undertook to maintain Plaintiff No. 1 and her husband. Scribe (d.w.3) in unequivocal terms stated that gift deed was executed on condition that Defendant No. 1 would maintain Plaintiff No. 1. Though normally, on assurance to maintain would not be a condition, in this case in view of the fact that there is no clear evidence how Defendant gained love and affection Plaintiff N. 1, agreement in writing executed by him is a consideration for the deed of gift. 19. Acceptance of the gift by Defendant is another condition for its validity. Case of Defendant is that after the deed of gift was executed it was handed over and he accepted the same is not sufficient proof of acceptance since case of Defendant is that Plaintiff No. 1 delivered possession of Dhobamunda lands to Defendant. This delivered of possession appears to be unture00000. Case of Defendant is that after the deed of gift was executed it was handed over and he accepted the same is not sufficient proof of acceptance since case of Defendant is that Plaintiff No. 1 delivered possession of Dhobamunda lands to Defendant. This delivered of possession appears to be unture00000. If the evidence of Defendant in the proceeding u/s 145, Code of Criminal Procedure, which is his earliest version is accepted, he was a tenant under Plaintiff No. 1 for that year in respect of Baghamunda land. When he was in possession of the lands, there was no question of physical delivery of possession. In evidence in the suit story of being a bhag renant was abondoned. Evidence of delivery of possession is also halting and is not acceptable. Thus, where Defendant stated that after handing over Defendant, delivery of possession was also given, both become integral part of acceptance when story of delivery of possession falls, were handing over the deed of gift even before registration is not such a circumstance to come to conclusion that gift was accepted. 20. One of the backgrounds for the gift is that Defendant was paying money to them and purchasing medicines. Defendant had a betel shop at Sonepur before his joining as peon. In absence of any evidence as to the income from betel shop in a small town at Sonepur, I cannot accept the story as there would be nothing left for owner of a betel shop to pay for others. He then became a peon in Block Office. It is not proved that betal shop continued to supplement his income. A peon having family members also would not have anything to spare for others. It has been brought out from Defendant that Plaintiff No. 1 was not in wants and was managing with the income from land. There is no reason why the land was not sold to meet the expenses for treatment and help was accepted from a person who is not directly related and had no relationship except acquaintance only. 21. From the aforesaid discussion, I am firm in my view that on the materials available, it cannot be held that gift was voluntary and without consideration and it was accepted by Defendant. 22. Once deed of gift is held to be invalid, Plaintiff No. 1 who had title, continued to have the same. 21. From the aforesaid discussion, I am firm in my view that on the materials available, it cannot be held that gift was voluntary and without consideration and it was accepted by Defendant. 22. Once deed of gift is held to be invalid, Plaintiff No. 1 who had title, continued to have the same. In this case, the land is under attachment in a proceeding u/s 145, Code of Criminal Procedure Plaintiff No. 1 claims to be a bhag tenant. Defendant also claims to be a bhag tenant. Such relationship with Plaintiff No. 1 is to be determined under the Orissa Land Reforms Act and not in the suit in view of Section 67 of the Orissa Land Reforms Act. 23. Cash of Plaintiff No. 3 that Plaintiff No. 1 executed a Will favour for testamentary succession would depend upon the question whether the Will requires probate. Trial court has not considered the same. I give liberty to Plaintiff No. 3 to get his title decided after death of Plaintiff No. 1, as such a case has not been proved in this case in view of his joining with Plaintiff No. 1 in the suit. 24. After death of Plaintiff No. 1 two persons have come forward to be substituted to continue the suit. The legal representatives would not be bound by finding in the suit. Therefore, I give liberty to the legal representatives to get their title declared against Plaintiff No. 3 as well as the person who would be declared to be in possession in the proceeding u/s 145, Code of Criminal Procedure or the proceeding under the Orissa Land Reforms Act. 25. In result, appeal is allowed. judgment of the trial Court is reversed and it is declared that Defendant did not get any title on basis of the deed of gift. There shall be no order as to coasts. Final Result : Allowed