JUDGMENT Deoki Nandan, J.
1. This is a plaintiffs second appeal in a suit for partition.
2. The relationship between the parties is not in dispute. It was alleged by the defendants Nos. 1 to 3, who are the heirs of Syed Imtiyaz Ali, that the property in suit had been gifted by Syed Amir Ali to Syed Imtiyaz Ali, father of Syed Wajid Ali, by a registered instrument dated 1st April, 1914. The gift deed excluded Syed Sajjad Ali, the plaintiff's husband, from any right to the house. He was, however, permitted to continue to live in it if he remained of good character. If the gift was a fact and valid in law, the plaintiff appellant as the widow of Syed Sajjad Ali had no case. The two courts below took that view and dismissed the suit without deciding the other issues raised in the case.
3. It is not necessary to refer to the whole case of the parties or their pleadings. Issue No. 8 raised the question whether the gift deed dated 1st April, 1914 relied upon by the defendants Nos. 1 to 3 is void and illegal for the reasons set forth in paragraph 12 of the plaint.
4. Paragraph 12 of the plaint was inserted by amendment after the defendants Nos. 1 to 3 had set up the gift deed in their written statement. The reasons set forth in paragraph 12 of the plaint are;--
(i) that the gift deed was a fraud on registration inasmuch as a Jamun tree, which was not the property of the donor had been fictitiously included for getting the deed registered with the Sub-Registrar, Khalilabad, within whose jurisdiction the Jamun tree was said to be situate:
(ii) the gift deed was not acted upon inasmuch as the donor did not during his lifetime deliver possession to the donee:
(iii) the donee never accepted, the gift, which was apparent from the plea taken by the donee in his written statement in Suit No. 5 of 1980 in the court of the Additional Munsif, Basti, Manzoor Ahmad v. Wajid Ali and others, and, further, the gift deed was a sham paper transaction, which was apparent from a sale deed of a part of the house said to have been executed by Syed Sajjad Ali in favour of Wajid Ali on 24-10-1974:
5. On these reasons it was pleaded that the gift deed was illegal, void and was not acted upon, and that on the death of Amir Ali, Sajjad Ali and others inherited his property along with Wajid Ali in accordance with their shares under the law.
6. The view of the lower appellate court, that the gift deed was not a void transaction, was assailed by the learned counsel for the plaintiff-appellant on the basis of certain rulings of the Privy Council, that is, Harendra Lal Roy Chowdhuri v. Smt Haridasi Devi (AIR 1914 PC 67), Mathura Prasad v. Chandra Narayan (AIR 1921 PC 8), Collector of Gorakhpur v. Ram Sundar Mal (AIR 1934 PC 157), and Venkatarama Rao v. Sobhanadri Appa Rao (1936 All LJ 258): (AIR 1936 PC 91). There could be no dispute about the principle of law laid down, by the Privy Council on these cases, but the lower appellate court has on an appraisal of the evidence on the record found it as a fact that Amir Ali was the owner ot a Jamun tree in village Bharwalia Mehar Ali, Tappa Ujiyar, within the jurisdiction of the Sub-Registrar Khalilabad, and that he did make a gift of the Jamun tree along with the other property in favour of Wajid Ali. The gift deed in this case was about 50 years old when the question was raised. Prima facie, it was a valid document duly registered under the law. The burden lay on the plaintiff to prove that it was a fraud on registration inasmuch as a non-existent Jamun tree had been included therein only to attract the jurisdiction of the Sub-Registrar, Khalilabad, when in fact there was none. The lower appellate court has discussed the evidence on this point in sufficient detail and I find that its approach to the question and the inference drawn by it are correct in law. That being the position, it cannot be said that the gift deed was void.
7. It was suggested in the course of arguments by the learned counsel for the plaintiff-appellant that a Jamun tree is not immoveable property, but it is clear that a Jamun tree is not standing timber. It is a fruit true, and on the authority of jthe decision of a Full Bench of this Court in Baij Nath v. Ramadhar (AIR 1963 All 214), cited by the learned counsel himself, it must be held that the jamun tree was immoveable property and that being so the gift deed could be validly registered by the Sub-Registrar, Khalilabad, within whose jurisdiction it was situated.
8. No other point was pressed before me. The appeal rails and is dismissed with costs.