D. S. SINHA, J. Heard Sri Gopal Narayan, holding brief of Sri Shyam Narayan, learned counsel appearing for the defendant- appellant. 2. By means of this appeal under Section 100 of the Code of Civil Procedure, 1908, hereinafter called the Code, the appellant seeks to assail the decree and judgment dated 17th September, 1977 of the Additional District Judge II, Gorakhpur, passed in Civil Appeal No. 11 of 1976 whereby the decree and judgment dated 17th January, 1976 of the Temporary Additional Civil Judge, Gorakhpur dismissing Suit No. 37 of 1972 between Bipta Devi and Chandrapal and others, has been set aside and the suit of Smt. Bipta Devi, the plaintiff-respondent No. 1, has been decreed. 3. On 5th February, 1972 the plaintiff-respondent instituted a suit for partition of the property in dispute claiming one-half share therein on the assertion that she acquired interest in the property in dispute through the sale-deed dated 14th September, 1971 executed by Vindhyachal, who had received the said property as a gift from Nepal Ram vide gift-deed, dated 28th September, 1954. 4. The defendant-appellant denied the claim of the plaintiff and contested the suit on the grounds that the name of Vindhyachal inserted in the gift deed fictitiously and Nepal Ram never intended to give his property to Vindhyachal ; that the gift-deed was executed on the condition that donee would maintain Nepal Ram during his life-time but Vindhyachal and his mother never served Nepal Ram and so the gift in favour could not take effect ; and that the gift was never acted upon by Vindhyachal conferring any right upon him in respect of the disputed property. The defendant-appellants also took up the plea of adverse possession. 5. On the findings that Vindhyachal never accepted the gift, so sale-deed in favour of the plaintiff- respondent No. 1 was invalid ; that- the gift was not conditional on rendering of any service by Vindhachal and Nepal Ram never gave out the gift; that the claim of Vindhyachal was barred by acquiescence and estoppel and the suit was barred by time ; and that Chandrapal, defendant- appellant had made improvement from his own funds, the trial Court dismissed the suit of the plaintiff- respondent No. 1. 6. 6. The lower appellate court considered two points, namely : (a) where the gift-deed in favour of Vindhayachal from whom the plaintiff-respondent No. 1 had purchased one-half share of the property in dispute was valid and a legal title in respect thereof passed on in her favour, and (b) whether Chandrapal had prescribed any title in the house of dispute by adverse possession and the claim of the plaintiff was barred by limitation. On both the points the lower appellate court ruled against Chandrapal, the defendant-appellant. It held that the evidence tendered on behalf of Chandrapal, the defendant- appellant, did not prove that the name of Vindhayachal was recorded fictitiously in the gift- deed, that he was in adverse possession gift-deed at its inception. It further held that Chandrapal being a co-sharer alongwith the plaintiff-respondent No. 1 could not acquire any right by adverse possession and that the suit was, therefore, not barred by limitation. 7. Before this Court Sri Gopal Narayan appearing for the defendant-appellant contends that the gift deed 28th September, 1954 in favour of Vindhychal, the predecessor-in-interest of the plaintiff- respondent No. 1, was invalid inasmuch as Vindhaychal did not accept the gift during the life-time of the donor, namely, Nepal Ram. Further contention of Sri Gopal Narain is that the gift in favour of Vindhyachal being invalid, no title passed on to the plaintiff-respondent No. 1 through the sale-deed, dated 14th September, 1971. He, therefore, submits that the lower appellate court erred in decreeing the suit of the plaintiff- respondent No. 1 for partition of her one-half share in the property in dispute. 8. Section 122 of the Transfer of Property Act, 1882 defines "gift" as the transfer of certain existing movable or immovable 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.- It also provides that the acceptance by or on behalf of the donor must be made during the life-time of the donor and while he is still capable of giving. Further stipulation in the section is that if the donee dies before the acceptance, the gift would be void. 9. Further stipulation in the section is that if the donee dies before the acceptance, the gift would be void. 9. It is found to be pleaded and prove that Vindhayacal, the donee did not accept the gift of the donor Nepal Ram in respect of the property in dispute during his life-time;, Sri Gopal Narayan would be right in contending that the gift deed dated 28th September, 1954 was void conferring no title upon Vindhaychal qua the disputed property, and as such the sale-deed dated 14th September, 1971 executed by him in favour of the plaintiff-respondent No. 1 would not pass any title to her. Therefore, it has to be seen whether Chandrapal, the defendant-appellant, had pleaded such a case. This court has carefully scrutinised the pleadings of Chandrapal, defendant-appellant, set up by him in his written statement and does not find even the slightest , whisper suggesting that Vindhaychal did not accept the gift during life-time of Nepal Ram, the donor. Therefore, the defendant-appellant cannot be allowed to assail the gift deed in favo. ur of Vindhayachal on the ground that he had not accepted the gift during the life-time of Nepal Ram. 10. Sri Gopal Narayan, learned counsel for the defendant- appellant however, contends that there is lot of evidence on re. cord to suggest that gift was not "accepted by Vindhyachal during the life-time of Nepal Ram. Therefore, according to him, the suit of the plaintiff-respondent No. 1 for partition of her one-half share in the property in dispute could not be decreed. This contention of the learned counsel has got to be rejected on the simple ground that in the absence of pleading set up in that behalf in the written statement the evidence if there be any, cannot be looked into to uphold the plea of invalidity of the gift-deed on account of the alleged non-acceptance thereof by Vindhyachal, the donee, during the life-time of Nepal Ram the donor, and it is so rejected. 11. The lower appellate court rightly decreed the suit of the plaintiff-respondent No. 1 on the findings recorded by it and in doing so it committed no such illegality which may justify interference by this Court under Section 100 of the Code. 12. In the result, the appeal fails and is hereby dismissed. However, there will be no order as to costs. 12. In the result, the appeal fails and is hereby dismissed. However, there will be no order as to costs. The Registry is directed to transmit the record of the court below back without any delay. Appeal dismissed. .