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2003 DIGILAW 334 (PNJ)

Nanak Chand v. Ami Lal

2003-02-21

R.L.ANAND

body2003
JUDGMENT R.L. Anand, J. - This is a defendants appeal and has been directed against the judgment and decree dated 4.8.1977 passed by the Court of Additional District Judge, Gurgaon, who accepted the appeal of the plaintiffs by setting aside the judgment and decree dated 2.3.1976, passed by the Court of Sub Judge Ist Class, Palwal who dismissed the suit of the plaintiffs with costs. 2. The brief facts of the case are that S/Shri Ami Lal, Brij Lal and Smt. Bohati filed a suit for possession against Shri Nanak Chand son of Jiwan Lal defendant No. 1 by adding Kanhiya, Dharamvir and Smt. Kariya as defendants No. 2, 3 and 4 on the basis of the ownership and it has been averred by the plaintiffs that Smt. Bahali widow of Budhi son of Rupa was the owner in possession of the suit land mentioned in para No. 1 of the plaint and she died in the year 1964 and parties inherited her estate according to Hindu Succession Act, 1956 as per pedigree table given in para No. 2 of the plaint which is reproduced as follows :- 3. The plaintiffs have further pleaded that Jiwan Lal, husband of Kariya and defendant No. 4 Smt. Kariya were very cunning person and after the death of Smt. Bahali both got sanctioned in mutation of inheritance in favour of their son Nanak Chand defendant No. 1 by projecting that he has been adopted by Smt. Bahali. This has been done in collusion with the Patwari. This act on the part of the defendant No. 1 is not binding upon the plaintiff as Smt. Bahali never adopted defendant No. 1 Nanak Chand as her son and therefore, Smt. Kariya defendant No. 4 is entitled to succeed only one-fifth share in the estate of Smt. Bahali and plaintiff and defendants No. 3, 4 and 5 are entitled to succeed the remaining 4/5th share. The plaintiffs have 1/5th share as a whole but after the death of Bahali defendants No. 1 and 4 had taken the possession of the suit land forcibly. They have further pleaded that the parties are Jats and are governed by custom and according to that the adoption cannot take place in the absence of ceremonies to be performed according to Dharam Shashtra and even no one can alienate the suit land without possession. They have further pleaded that the parties are Jats and are governed by custom and according to that the adoption cannot take place in the absence of ceremonies to be performed according to Dharam Shashtra and even no one can alienate the suit land without possession. The plaintiff called upon the defendants to admit their claim over the suit land but in vain. Hence the suit. 4. The notice of the suit was given to the defendants. It was contested by defendants No. 1 and 4 only. The other defendants were proceeded ex parte. It was pleaded by the contesting defendants in their written statement that the suit is not legally maintainable because defendant No. 3 Dharambir was of unsound mind at the time of the filing of the suit. The defendants further pleaded that the suit is bad for non-joinder of necessary parties; the plaintiffs are estopped from filing the present suit on account of their own act and conduct as they had consented to the adoption of defendant No. 1 Shri Nanak Chand as son of Bahali who had been treating Nanak Chand as her son. Said Shri Nanak Chand is in possession of the suit land since 1956 and he was also in possession even during the life time of Smt. Bahali who died on 21.7.1964 as Smt. Bahali adopted Shri Nanak Chand as her son and performed all the relevant ceremonies and transferred the ownership and possession of the suit land to him in the month of December 1956 when the deed of adoption-cum- deed of gift was executed on 11.12.1956. It is was a registered document. It has been further pleaded that Smt. Bahali made a gift of the suit land and property in favour of her adopted son Nanak Chand in the month of December, 1956 and thereby transferred the ownership right and possession to him. The plaintiffs have no locus standi to challenge the same. It has also been pleaded by the defendants that parties are Jats by caste. All the ceremonies of adoption were performed at the time of the adoption. Further more the suit is not properly valued for the purpose of court-fee and jurisdiction. With this defence, the defendants/contesting defendants prayed for the dismissal of the suit. 5. From the pleadings of the parties, the following issues were framed :- 1. All the ceremonies of adoption were performed at the time of the adoption. Further more the suit is not properly valued for the purpose of court-fee and jurisdiction. With this defence, the defendants/contesting defendants prayed for the dismissal of the suit. 5. From the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiffs are heirs of Smt. Bahali deceased as alleged and if so, to what share ? OPP. 2. Whether defendant No. 1 Nanak Chand was adopted as son by Smt. Bahali and if so its effect ? OPD 3. Whether the suit is not maintainable for the reasons given in preliminary objection Nos. 1 and 2 in written statement ? OPD 4. Whether the suit is bad for non-joinder of necessary parties as alleged in preliminary objection No. 3 of the written statement ? OPD 5. Whether the suit is within limitation in view of preliminary objection Nos. 4 and 5 of written statement ? OPP (onus objected to) 6. Whether the plaintiffs are estopped from bringing the present suit for the reasons given in preliminary objection No. 3 of the written statements ? OPD 7. Whether the suit is properly valued for court fee and jurisdiction ? OPP 8. Whether the defendants are entitled to special costs within the meaning of Section 35-A of Civil Procedure Code ? OPD. 9. Relief. An additional issue was also framed on 1.1.1976 to the following effect : Whether Smt. Bahali made a gift of the suit land in favour of defendant No. 1 Nanak Chand, if so, its effect ? OPD 6. Parties led oral and documentary evidence in support of their case and on the conclusion of the trial the learned trial Court decided under issue No. 1 by holding that in the absence of impugned adoption and gift deed, the plaintiffs along with defendants and others sons and daughter of the deceased Smt. Bahali shall be her heirs. This issue was decided in these terms. Issue No. 2 was decided against the defendants by holding that the documents Ex. DW7/1 dated 11.12.1956 so far as adoption is concerned, it is not a valid adoption and as such Shri Nanak Chand could not be treated as adopted son of Smt. Bahali and that the same he was not entitled to succeed her as adopted son. Issue No. 2 was decided against the defendants by holding that the documents Ex. DW7/1 dated 11.12.1956 so far as adoption is concerned, it is not a valid adoption and as such Shri Nanak Chand could not be treated as adopted son of Smt. Bahali and that the same he was not entitled to succeed her as adopted son. Issues No. 3 and 4 were decided against the defendants. Issue No. 5 was decided in favour of the plaintiffs. Issue No. 6 was decided against the defendants, issue No. 7 was decided in favour of the plaintiff. Issue No. 8 was decided against the defendants. Additional issue No. 1 framed on 1.1.1976 was decided in favour of defendant No. 1 by holding that a valid gift has been made by Smt. Bahali in favour of Nanak chand defendant No. 1 and thereby he has become the owner of the suit property. In view of the findings given by the trial Court under additional issue No. 1 the plaintiffs suit was dismissed with costs. 7. Aggrieved by the judgment and decree of the learned trial Court, the plaintiffs filed the first appeal before the Court of Additional District Judge, Gurgaon, who, vide impugned judgment and decree came to the conclusion that additional issue No. 1 which was decided against the plaintiffs, has been wrongly decided. Resultantly, the appeal filed by the appellant was accepted, the judgment and decree passed by the learned trial Court dismissing the suit was set aside. The first appellate Court on the contrary granted a decree for possession of 2/5th share in the land in dispute against respondents No. 1 and 5 leaving the parties to bear their own costs. 8. Not satisfied with the impugned judgment and decree dated 4.8.1977, passed by the first appellate Court, the defendants filed the present Regular Second Appeal No. 1394 of 1977 in the High Court in the year 1977, took notice of the case law which was cited before him and his Lordship was further of the opinion that the subject matter under issues No. 2, 5 and additional issue No. 1 does arose (pose ?) a question of law requiring the determination of those issues. Resultantly, the appeal was admitted. 9. Resultantly, the appeal was admitted. 9. When this aspect was brought to the notice of the lawyers after remand from Honble Supreme Court, it was submitted before me that a question of law requiring determination of issues No. 1, 5 and additional issue No. 1, has already been framed and fresh order as per the directions of the Honble Supreme Court is not required. Since the judgment of Honble Mr. Justice J.V. Gupta, has already been set aside by the Honble Supreme Court, therefore, I am deciding R.S.A. No. 1394 of 1977 after hearing the learned counsel of the parties at length and on going through the records of the trial Court by not influencing himself with any observations made by Honble Mr. Justice J.V. Gupta in his Lordships judgment dated 26.8.1987 vide which the suit of the plaintiff was dismissed. 10. Before I deal with the submissions raised by the counsel for the parties, it will be appropriate for me to say that with regard to the adoption, the learned trial Court held after relying upon Article 449 of Hindu Law by Mullah that Shri Nanak Chand defendant No. 1 could not be treated as adopted son of Smt. Bahali and as such he was not entitled to succeed her estate as an adopted son. Resultantly, issue No. 2 was decided against Shri Nanak Chand. Irrespective of the fact that finding under issue No. 2 was given against Shri Nanak Chand still it was held by the trial Court under additional issue No. 1 that valid gift deed had taken place making Shri Nanak Chand as owner of the property because Smt. Bahali was the full fledged owner and she had executed a valid gift deed in favour of Shri Nanak Chand. This finding was given by the learned trial Court under additional issue No. 1. 11. On the contrary, the first appellate Court set aside the findings of the learned trial Court also on additional issue No. 1 and decreed the suit of the plaintiffs by granting a decree for possession to the extent of 2/5th share. 12. Two points have arisen before me in this case which are to be disposed of under issue No. 2 and additional issue No. 1 whether the deed of adoption-cum-gift Ex. 12. Two points have arisen before me in this case which are to be disposed of under issue No. 2 and additional issue No. 1 whether the deed of adoption-cum-gift Ex. DW7/1 dated 11.12.1956 is a valid document with regard to the adoption and gift; whether this document is to be acted upon in a piecemeal manner or it has to be ignored as a whole. 13. I have heard Shri Arun Jain, Advocate, appearing on behalf of the appellants and Shri M.S. Jain, Sr. Advocate, appearing on behalf of the respondents and with their assistance have gone through the record of this case. 14. The deed of adoption-cum-gift deed is Ex. DW7/1. It has been executed by the one Smt. Bahali and Smt. Kariya who is the daughter of Smt. Bahali. It has been stated by Smt. Bahali in Ex. DW7/1 that Smt. Kariya is her daughter. She had two sons by the name of Nanak Chand and Lal Chand. Smt. Kariya is residing with her for the last about 10 years. She has a great love and affection for Nanak Chand her grandson who is residing with her. So much so, Shri Nanak Chand was born at her place. She wants to adopt the child. Therefore, she is adopting Shri Nanak Chand in the presence of the Baradri and she had accepted Shri Nanak Chand by making him sit into her lap and she has completed all other ceremonies and formalities and for all intents and purposes. Shri Nanak Chand has been made her adopted son. She further gave the description of the land which was possessed by her at the time of the adoption. She assessed the value of the property as 36 thousand. In this document she avers that she has gifted the property to her adopted son. Shri Nanak Chand who has become the absolute owner and in possession of the same. She has also delivered the possession of the estate to Shri Nanak Chand her adopted son. She further agrees through the document by making a recital that she would get the mutation entered in the name of her adopted son Shri Nanak Chand. Resultantly, she is executing this deed of adoption-cum-gift deed. This document is signed by Smt. Bahali and it is also signed by Smt. Kariya the natural mother of the adopted son who has signed the gift-deed-cum-deed of adoption. Resultantly, she is executing this deed of adoption-cum-gift deed. This document is signed by Smt. Bahali and it is also signed by Smt. Kariya the natural mother of the adopted son who has signed the gift-deed-cum-deed of adoption. The child was given in adoption by Smt. Kariya though at the time of the deed of adoption dated 11.12.1956 her husband, Shri Jiwan Lal was alive. Hindu Adoption and Maintenance Act, 1956 came into force with effect from 21.12.1956, therefore, the rights of the parties are not to be governed by this Act but are supposed to be governed with regard to the law of adoption enforceable in this part of the country prior to 21.12.1956. It is the specific case of the plaintiff in para No. 4 of the plaint that parties were Jats and they were governed by custom. In this view of the matter, even the provision of Hindu Law as applicable to Mitakshra Family will not apply. Under the Custom, adoption is nothing but nomination of a successor for the purpose of inheritance. The adopted son does sever his connections from natural family. He virtually enjoins two successions one by natural succession and one by nomination. It has been observed in 1971 PLJ 636, Sohan Singh v. Gurtej Singh, that when a adoption takes place under the custom, the adopted son is as much a son of the father as of the mother. A son is adopted only when there is no natural son and after adoption deed if a natural son is born he shares equally with the adopted son. This clearly indicates that the adopted son has the same status vis-a-vis his adoptive parents as a natural born son. The only difference between an adoption under the Customary Law and an adoption under the Hindu Law is that if the son is adopted under the Customary Law he does not lose all connections with the natural family. He retains the right of collateral succession in his natural family whereas in the case of an adoption under the Hindu law he is left with no connection with the natural family. Besides, this, there is no material distinction between an adoption under the Hindu Law and an adoption under the Customary law. He retains the right of collateral succession in his natural family whereas in the case of an adoption under the Hindu law he is left with no connection with the natural family. Besides, this, there is no material distinction between an adoption under the Hindu Law and an adoption under the Customary law. In this view of the matter, I am of the opinion that Shri Nanak Chand became the adopted son of Smt. Bahali and as such he was entitled to succeed her estate on account of his being adopted son. 15. The learned trial Court while deciding issue No. 2 and by relying upon Article 449 of the Hindu Law came to the conclusion that in the old Hindu Law a widow could adopt a son only for her husband and only if she had been expressly authorised to do so by her husband before his death. As the husband of Smt. Bahali had never authorised her to adopt a son, therefore, this adoption is bad. Article 449 of the Hindu Law which has been relied upon by the learned trial Court on this issue lays down as follows :- "Every male may adopt provided he is otherwise competent to do so. A wife also can adopt to her husband, but no other female can adopt to any other male; thus a mother cannot adopt to her son, nor a sister to her brother. A wife cannot adopt during her husbands life time except with his express consent. After his death, she may adopt, in certain parts of India, only if he has expressly authorised her to adopt, and in other parts of India, even without such authority. But in no case can a wife or a widow adopt a son to herself the adoption must be made to her husband. An adoption by a woman of a son to herself is invalid and it confers no legal rights upon the person adopted". In my opinion, this finding given by the learned trial Court deserves to be set aside. Even the finding given by the appellate Court holding that the adoption is bad cannot be sustained because I cannot forget a fact that it is the case of the plaintiffs themselves that parties to the suit were governed by the customs. In my opinion, this finding given by the learned trial Court deserves to be set aside. Even the finding given by the appellate Court holding that the adoption is bad cannot be sustained because I cannot forget a fact that it is the case of the plaintiffs themselves that parties to the suit were governed by the customs. The learned first appellate Court relied upon Para 39 of the Digest of Customary law by W.H. Rattigan, where it has been written that a widow cannot appoint or adopt a heir to her husband unless she has been expressly authorised by her husband to do so or has obtained the consent of her husbands kindered. Even if Para 39 of the Rattigan Digest is taken for the benefit of the plaintiff, still I am of the opinion that the suit of the plaintiffs could not be decreed as this Court has formulated an opinion that Smt. Bahali on the date of the execution of the gift deed dated 11.12.1956 was the absolute owner of the property and she was competent to gift her estate in favour of Nanak Chand. This point of law is decided accordingly under issue No. 2. 16. Additional Issue No. 1 was the most hotly contested issue upon which the parties addressed lengthy arguments. The learned counsel appearing on behalf of the appellant Shri Jain vehemently submitted that the first appellate Court was not justified in setting aside the finding of the learned trial Court on this issue, therefore, this Court should hold that a valid gift has been constituted and executed vide document Ex. DW7/1. On the contrary, Shri M.S. Jain, Sr. Advocate, appearing on behalf of the respondent, endorses the view taken by the first appellate Court and submitted that not only the adoption is bad but also the gift deed was bad as there was no acceptance of the gift deed as required under the law as per the provision of Section 122 of the Transfer of the Property Act which had become applicable in this part of the country with effect from 1.4.1955. 17. Let us first examine the reasons given by the first appellate Court for setting aside the findings of the learned trial Court under additional issue No. 1 and those findings are contained in paras No. 14 to 20 which are reproduced as follows :- "14. 17. Let us first examine the reasons given by the first appellate Court for setting aside the findings of the learned trial Court under additional issue No. 1 and those findings are contained in paras No. 14 to 20 which are reproduced as follows :- "14. Under the additional issue No. 1, the question for a decision is whether Smt. Bahali made a valid gift of the suit land in favour of Nanak Chand, respondent No. 1. The onus to prove this issue had been placed upon the said respondent and, therefore, it was for that respondent to have produced the proper evidence on the record of the case to prove the plea underlying the issue. The said respondent brought on the record of the suit the document Ex. DW7/1, which is a certified copy of the adoption deed-cum-gift deed executed by Smt. Bahali. On behalf of the appellants, it has been urged that the certified copy is not admissible in evidence, when the original document has not been produced and when no case for producing the secondary evidence has been made out. The learned counsel fore the appellants cited Parsa Singh v. Smt. Parkash Kaur and others, 1976 PLR 21 in support of this submission. However, the authority does not actually contains the law as understood by the learned counsel. From the last few lines in para No. 6 of the said ruling, it can be clearly noticed that the secondary evidence for providing the contents of the document can be produced if the loss of original document has been proved. In the instant case, there is a clear evidence in the testimony of Nanak Chand (DW12) that the original document was misplaced by the Patwari, because the same was not returned to him. From the proceedings recorded by the Assistant Collector IInd Grade on the mutation Ex. D.1, it can be noticed that the original gift deed was produced when the mutation was taken up for consideration. Deshpal (DW4) who was the Patwari of village Sihi at the relevant time, also deposed that the original document was produced before him. His testimony also shows that upon the original document, the mutation was entered. D.1, it can be noticed that the original gift deed was produced when the mutation was taken up for consideration. Deshpal (DW4) who was the Patwari of village Sihi at the relevant time, also deposed that the original document was produced before him. His testimony also shows that upon the original document, the mutation was entered. As there is no reason to reject the evidence produced in this behalf, it is concluded that the loss of the original document has been proved and that a case for producing the secondary evidence has been made out. The document Ex. DW7/1 contains the recital that Smt. Bahali had transferred the property in dispute in favour of Nanak Chand, respondent No. 1. The learned counsel for the respondent No. 1 submitted that this recital in the document proved that Smt. Bahali had made a gift of her property in favour of the said respondent. At that time, Nanak Chand was a minor and the original document was entrusted to his father. The learned counsel cited (i) Gagadhara Iyer and others v. Kulathy Iyer Sankara Iyer, AIR 1952(39) Travancore Cochin 47 and (ii) Mst. Samarathi Devi v. Parasuram Pandey and others in support of this argument. 15. The learned counsel for the respondent No. 1 then cited Tara Sahuani and others v. Raghunath Sahu and another, AIR 1963 Orissa 50 and stated that the mutation Ex. D.1 had been entered in pursuance to the aforesaid gift deed. The facts of the case reported in that ruling show that the mutation had been entered during the life time of the maker of the alleged gift deed. In the instant case, the mutation Ex. D.1 was entered after the death of Smt. Bahali. That being the factual position of the present case, the respondent No. 1 cannot derive any benefit as per from the aforesaid ruling or upon the other ruling viz, Adhikari Naryanamma v. Adhikari Thabitinaidu, AIR 1964 Orissa 212. 16. There are two important circumstances of the case which render the gift a dubious transaction. The document Ex. DW7/1 was made on 11.12.1956. The respondent No. 1 claims that Smt. Bahali transferred her property to him under the said document. This document was not acted upon during her life time, because the mutation of the gift was neither entered nor sanctioned during her life time. A bare reading of the mutation Ex. The document Ex. DW7/1 was made on 11.12.1956. The respondent No. 1 claims that Smt. Bahali transferred her property to him under the said document. This document was not acted upon during her life time, because the mutation of the gift was neither entered nor sanctioned during her life time. A bare reading of the mutation Ex. D.1 shows that it was entered after the death of Smt. Bahali. On behalf of the respondent No. 1, the learned counsel has not offered any explanation as to why a mutation was not got entered or sanctioned, on the basis of the disputed gift deed, in the life time of Smt. Bahali. As submitted on behalf of the appellants, mutation was not got entered during the life time of Bahali, because she was not then aware of the contents of the document dated 11.12.1956 which had been allegedly got executed from her. Had the mutation been entered and considered by the Revenue Officer in her life time, she would have raised some objection to the same. The appellants were not the parties to the disputed document dated 11.12.1956 and, therefore, they could not come to know of the same in the life time of Smt. Bahali. For that reason they could not attack the execution of the said document or the making of the alleged gift in her life time. 17. The other circumstances which goes against the respondent No. 1, is that, despite the making of the disputed gift, Smt, Bahali remained in possession of the suit property. The suit land is described in the document Ex. P10 which is a certified copy of the Jamabandi for the year 1961-62. From this document, it can be noticed that Smt. Bahali remained recorded owner in possession of the land in dispute despite the alleged transfer of the property to the respondent No. 1 by the gift under the document dated 11.12.1956. Even from the mutation Ex. D.1 it can be noticed that Smt. Bahali remained owner in possession of the disputed land till the mutation was sanctioned. Therefore, the proved fact is that, till her death Smt. Bahali remained owner in possession of the disoputed land. In other words, Smt. Bahali never surrendered the possession of the disputed land in favour of the respondent No. 1. D.1 it can be noticed that Smt. Bahali remained owner in possession of the disputed land till the mutation was sanctioned. Therefore, the proved fact is that, till her death Smt. Bahali remained owner in possession of the disoputed land. In other words, Smt. Bahali never surrendered the possession of the disputed land in favour of the respondent No. 1. In the State of Punjab and others v. Sant Singh, 1976 PLR 87, the Division Bench of the Punjab and Haryana High Court ruled that the delivery of possession was necessary for the validity of the gift. In Smt. Mukhtiar Kaur v. Smt. Gulab Kaur, 1977 PLR 185, the Honble Judge of the Punjab and Haryana Hihg Court observed as under :- "That in case the gifted property is capable of physical possession, the non- delivery of the same makes the gift invalid, a valid gift, therefore, must ordinarily be followed by possession. Held that the delivery of possession can prove the assent of the donor and mere assent in the gift deed jcannot prove the factum of delivery of the possession of the gifted property". 18. As Smt. Bahali remained in possession of the suit land till her death despite allegedly having executed the document Ex. DW7/1, it would follow that there was no valid gift in favour of Nanak Chand, respondnet No. 1. 19. On behalf of the respondent No. 1, the learned counsel cited Revappa v. Madhava Rao and another, AIR 1960 Mysore 97, and submitted that the delivery of the possession of the property gifted was not an essential ingredient for validating the gift under the law. This Court cannot follow the law interpreted by the Mysore High Court when a contrary view of the law has been taken by our own High Court in the two authorities cited above. The learned counsel for the respondent No. 1 then cited Smt. Nozi and others v. Mohan Lal, AIR 1957 Rajasthan 128 and submitted that the disputed gift deed was not repudiated by Smt. Bahali in her life time. This argument has got no force, if it be borne in mind that Smt. Bahali was an illiterate lady. From the document Ex. DW7/1, it can be noticed that she had only put her thumb impression upon the original document. This argument has got no force, if it be borne in mind that Smt. Bahali was an illiterate lady. From the document Ex. DW7/1, it can be noticed that she had only put her thumb impression upon the original document. It is very likely that Jiwan Lal, father of Nanak Chand and son-in-law of Smt. Bahali, prevailed upon her in getting the original document executed from her without her coming to know the contents of the same. 20. Therefore, on the two grounds, viz. that the mutation Ex. D.1 was not got sanctioned in the life time of Smt. Bahali and that it was got entered and sanctioned after her death and that there was no delivery of possession of the land from Smt. Bahali in favour of Nanak Chand after the execution of the disputed document, it is concluded that there was no valid gift of the suit land by Smt. Bahali in favour of Nanak Chand, respondent No. 1. Therefore, the finding recorded by the learned Judge on the issue No. 1 is reversed and the said issue is decided against the respondent No. 1." 18. Now, let us examine the relevant provisions of the law. Section 122 of the Transfer of Property Act lays down that a gift is the transfer of certain existing moveable 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 further lays down that such acceptance must be made furing the life time of the donor and while he is still caable of giving, if the donee dies before the acceptance, the gift is void. 19. A reading of the above Section would show (i) that gift is a transfer of ownership interest in movable or immovable property (ii) such transfer must be voluntarily and without consideration by one person to the other and (iii) the transfer must be accepted either by or on behalf of the donee. Such acceptance can be expressed or implied and it would also be a question of fact in each case whether there is an acceptance on the part or on behalf of the donee or not. Yet further such acceptance must be made whether express or implied during the lifetime of the donor while he was capable of giving, otherwise the gift will become void. Yet further such acceptance must be made whether express or implied during the lifetime of the donor while he was capable of giving, otherwise the gift will become void. As per the provisions of Section 134 for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. 20. Reverting to the facts of the present case, it is a case of immovable property. This transfer has been effected by a registered instrument. It has been signed by Smt. Bahali who is the donor and it has also been attested by two witnesses. Still the point for determination would be whether the document Ex. DW7/1 and the conduct of the parties has complied with the provision of Section 122 of the Transfer of Property Act or not which defines a gift and the entire emphasis of the parties is with regard to the acceptance by or on behalf of the donee. 21. Learned counsel appearing on behalf of respondent Shri M.S. Jain, vehemently submitted that in this case there is no acceptance because this gift deed was never acted upon by the donor or by the donee. Supplementing his argument Mr. M.S. Jain, learned counsel appearing on behalf of the respondent submitted that the gift deed was executed on 11.12.1956. In the Jamabandi. of 1961-62 Ex. P.10 and in the Jamabandi for the year 1958-59 Ex. P.12 both in the column of ownership and cultivation the name of Smt. Bahali has been written and further column No. 5 shows that the land in question was in her self-cultivation and possession. The counsel also submitted that with regard to the gift deed, the mutation was entered on 21/29.7.64 and was sanctioned on 19.8.1964 after the death of Smt. Bahali. The death took place on 8.6.1994. In this view of the matter, the donor had been exercising her right over the land in question treating herself as owner and in possession of the property on behalf of the donee. Smt. Kariya the mother of Nanak Chand had signed but she has nowhere stated while signing the document that she had accepted the gift on behalf of Shri Nanak Chand nor there is any averment in the body of the deed Ex. Smt. Kariya the mother of Nanak Chand had signed but she has nowhere stated while signing the document that she had accepted the gift on behalf of Shri Nanak Chand nor there is any averment in the body of the deed Ex. DW7/1 that the gift has been accepted on behalf of the donee by her natural mother. In these circumstances, it is not gift in the eyes of law as required under Section 122 of the Transfer of Property Act. In support of his contention, the counsel for the respondent, relied upon 1976 PLR 87, a Division Bench Judgment State of Punjab v. Sant Singh, wherein it was held that while dealing with the provisions of Hindu Law that the gift would be covered by the principle of Hindu Law under which the delivery of possession is necessary for its validity. 22. I have the occasion to go through this judgment and in my opinion this judgment is not helpful to Mr. M.S. Jain, learned counsel appearing on behalf of the respondents because this case was decided on facts. In the cited case, the mutation was rejected and the evidence had come that no effort was made by the wife to assert her right on the basis of the report of the Patwari after rejection of the mutation. There was no assertion on the part of the donee that she had been enjoying the usufruct of the gifted land or was exercising any type of control on this land either directly or through someone. No one has sworn any affidavit that the wife accepted the gift and the respondent acted with her permission or her permissive consent in agitating the present matter. A reliance was also placed by the counsel for the respondent upon 1977 PLR 185, Mukhtiar Kaur v. Gulab Kaur in which it was observed that in case the gifted property is capable of physical possession of the non-delivery of the same makes the gift invalid. Therefore, a valid gift must ordinarily be followed by possession. Reliance was also placed on 1989 PLJ 15, Gurdial Singh v. Chhajja Singh where it was held that the delivery of possession will be one piece of evidence of acceptance. Further observed that even if possession as such may not have been delivered even then the acceptance can be there by donee. 23. Reliance was also placed on 1989 PLJ 15, Gurdial Singh v. Chhajja Singh where it was held that the delivery of possession will be one piece of evidence of acceptance. Further observed that even if possession as such may not have been delivered even then the acceptance can be there by donee. 23. My attention has been invited to 1997 PLR 468, Kripal Singh v. Aas Kaur, where this Court held that acceptance was must by or on behalf of the donee and it must be during the life time of the donor when he was capable of giving the property so gifted. 24. Much stress was laid by Shri M.S. Jain, learned counsel appearing for the respondents, on AIR 1991 Orissa 151, Gouranga Sahu and others v. Maguni Dei and others where it was observed that possession and use of gifted property by donee establishes the acceptance of the gift. 25. I have considered the citations which have been relied upon by the counsel for the respondents and am of the opinion that these judgments are not relevant to the facts in hand. If the provisions of Sections 122 and 123 are interpreted harmoniously, it will leave no manner of doubt that the Legislature was more eager to hold that a valid gift has been executed in relation to a immovable property if such transfer is voluntary and without consideration by one person in favour of the other and such transfer must be accepted by or on behalf of the donee. It is not the intention of the law that acceptance must be express. It can be implied. It can be gathered from the intentions, delivery of actual and physical possession of the gifted property will be a question of fact depending on facts to facts of each case and in relation of the nature of the property gifted. In a movable property, the delivery of the possession should be invariably there so as to constitute a valid transfer. It will certainly indicate as acceptance either by the donned or on behalf of the donee in relation to immovable property. It will be again a question of fact whether the donor retains the control over the property or he delivered the possession and control of the gifted property to the donee and had the permissive possession over the property gifted on behalf of the donee. 26. It will be again a question of fact whether the donor retains the control over the property or he delivered the possession and control of the gifted property to the donee and had the permissive possession over the property gifted on behalf of the donee. 26. With this background, let us examine the recital of document Ex. DW7/1 again. Smt. Bahali has categorically stated that Shri Nanak Chand, defendant No. 4 has become the absolute owner of the gifted land and that possession of the estate aforesaid (mentioned in the gift-deed) has been delivered to the donee. Meaning thereby that on behalf of the donee the possession has been accepted by his natural mother Smt. Kariya. In addition to this, further recital was made by Smt. Bahali agreeing upon that she would get the entry of ownership and possession transferred in favour of Shri Nanak Chand her adopted son. If for any reason, in the revenue record, the name of Smt. Bahali has not been changed in favour of Shri Nanak Chand, it does not mean that Shri Nanak Chand was not in the possession of the property as a full fledged owner. It is neither the mandate nor the desire of the law that there should be a reciprocal recital on the part of the donee that he had accepted the gift and taken the possession of the property so gifted whether movable or immovable. The moment there is a delivery of possession, it will implied consent and acceptance on the part of the donee with regard to the delivery of possession. In this case, the donee was a minor. This was the reason that this gift deed-cum-deed of adoption, has been signed by Smt. Kariya, the real mother of Nanak Chand. The very signatures on the document Ex. DW7/1 by Smt. Kariya would indicate that she had accepted the gift and also she gave the child in adoption to Smt. Bahali. Mutation does not confer a title. Even if it is assumed for the sake of argument that the possession remained with the donor even after the execution of the document Ex. DW7/1 dated 11.12.1956 that possession would be on behalf of the donee and not in her own right as it used to be before the date of the execution of the deed of adoption-cum-gift deed dated 11.12.1956. 27. DW7/1 dated 11.12.1956 that possession would be on behalf of the donee and not in her own right as it used to be before the date of the execution of the deed of adoption-cum-gift deed dated 11.12.1956. 27. In this regard, I can draw some force form AIR 1960 Mysore 97, Revappa v. Madhava Rao and another, wherein it was observed that Section 123 of the Transfer of Property Act, is applicable to gifts of immovable property made by persons governed by the Hindu Law. The emphasis so far as the transfer of immovable property under section 123 is on the execution of an instrument properly executed and not so much on the actual delivery of the property. Thus, the delivery of possession of the property gifted is not an essential ingredient for validating the gift under the law. Smt. Bahali has not challenged the gift deed during her life time. She died on 8.6.1964. 28. In 1973 PLJ 323, Pishori Lal v. Maya Devi it was observed that when a gift deed is a registered document and has been produced by the donee in support of the title, this proves that the acceptance of the gift and the delivery of the possession of gifted immovable property is not an essential ingredient and so was also held by the High Court in 1992(2) RRR 532. In AIR 1981 Punjab and Haryana 174, Tirath v. Manmohan Singh, it was held that where the gift deed has been signed by the donee in token of their acceptance of the same, it is only the donor who can object to the delivery of possession if the donor supports that a valid gift was made then non-delivery of possession if any becomes immaterial. It is not a suit by Smt. Bahali. Therefore, I am of the considered opinion that there was a proper acceptance constituting a valid gift deed as required under Sections 122 and 123 of the Transfer of Property Act. 29. Now, I deal with the proposition whether Smt. Bahali was competent to execute the gift deed in favour of her adopted son Nanak Chand or not. In this regard I would like to refer to the provisions of Section 14 of the Hindu Succession Act which had come into force by the time when Smt. Bahali died. 29. Now, I deal with the proposition whether Smt. Bahali was competent to execute the gift deed in favour of her adopted son Nanak Chand or not. In this regard I would like to refer to the provisions of Section 14 of the Hindu Succession Act which had come into force by the time when Smt. Bahali died. According to Section 14(1) of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Even under the customs if Smt. Bahali was holding the property as a limited owner by virtue of enforcement of this Act which came into force 17.6.1956 she became the absolute owner of the property and as such she was competent to transfer the property by way of gift deed in favour of Shri Nanak Chand subject to the compliance of the provisions of Sections 122 and 123 which provisions in this case are fully complied with and regarding which a detailed discussion I have made just above. Therefore, I am not in agreement with the finding of the first appellate Court when it reversed the finding of the learned trial Court on additional Issue No. 1. I reverse the finding of first appellate Court and restore the finding of the trial Court on this issue and this issue is decided in favour of the defendants and against the plaintiffs. I had already held above that there was a valid adoption in this case of Shri Nanak Chand by Smt. Bahali who treated as accepted Shri Nanak Chand as her own son. It was a complete transfer of Shri Nanak Chand from one family to the other. This adoption was valid both under the Hindu Law as it stood prior to the enforcement of Hindu Adoption and Maintenance Act. 30. The learned counsel appearing on behalf of the respondents submitted that Smt. Kariya could not give the child in adoption in the presence of her husband who alone was competent to give the child as he is not the party to the deed of adoption Ex. DW7/1, therefore, adoption is bad. 30. The learned counsel appearing on behalf of the respondents submitted that Smt. Kariya could not give the child in adoption in the presence of her husband who alone was competent to give the child as he is not the party to the deed of adoption Ex. DW7/1, therefore, adoption is bad. Firstly, I may make a mention that even I assume for the sake of argument that this adoption is bad still the case of the plaintiff is not going to succeed on account of my findings given on the point of gift. I have already held that under the custom, adoption is not a complete transfer of a child from one family or the other. It is not like a civil death of a child from the natural family to the adopted family. He has the connection in both the families. It is a nomination of a successor. Smt. Bahali had nominated her heir for the purpose of inheritance and, therefore, the adoption of Shri Nanak Chand from the family of Smt. Kariya to the family of Smt. Bahali was a valid one and for such transfer the consent of the husband of Smt. Kariya was not mandatory. As sought to be projected by the learned counsel appearing on behalf of the respondent in this regard we can rely upon Ajit Singh and another v. Fateh Singh and others, AIR 1962 Punjab 412 and 1960 PLR 250, Ranjit Singh v. Tola Singh and others where it was held that a customary adoption being secular in character and being nothing more than an appointment of an heir, the requirements as to the ceremonies or the selection of person to be adopted or husbands authority are directory and an adoption made in disregard of such authority is not invalid. In view of my above discussion, I allow this appeal, set aside the impugned judgment and decree dated 4.8.1977 passed by the Court of Additional District Judge, Gurgaon by restoring the judgment and decree passed by the learned trial Court who in my opinion rightly dismissed the suit of the plaintiffs- respondents. The judgment and decree dated 2.3.1976 stands restored vide which the suit of the plaintiff was rightly dismissed. There shall be no order as to costs. Petition allowed.