Gian Kaur vs Piara Singh and Another

J.V. Gupta, J.—This is Defendant''s Second Appeal against whom suit for possession was dismissed by the trial Court but decreed in appeal.

Piara Singh filed the suit for declaration to the effect that he along with Hukam Singh, Defendant No. 2, was the owner-in-pos-session of the land measuring 2K 9M in equal shares; that Shmt. Gita Devi alias Gian Kaur, Defendant, had no right, title or interest in the same and that Mutation No. 2125 sanctioned in her favour regarding the suit land on the basis of a gift deed Ex D5, dated 11th November, 1970, was wrong, illegal and invalid. In the alternative, possession of the suit land was claimed.

The suit land, admittedly, belonged to Devi Chand, son of Jiwan Singh who died on 31st March, 1971 The Plaintiff and Hukam Chand, Defendant No. 2 were the sons of Labh Singh, brother of Jiwan Singh, i.e., nephews of Jiwan Singh, and, as such, they were the heirs of Devi Chand After the death of Devi Chand, Shmt. Geeta Devi, Defendant, got the mutation regarding the suit land sanctioned in her favour on the basis of gift deed Ex. D5, dated 11th November 1970, and also claimed herself to be the widow of Devi Chand. The Plaintiff denied her status and also the execution of the said gift deed in her favour by Devi Chand deceased. It was further pleaded that Devi Chand was not competent to execute the gift deed Ex. D5 under custom by which the parties were governed, as the land was ancestral.

In the Written Statement filed on behalf of Gita Devi, Defendant, she pleaded inter alia, that her name was Gian Kaur, and not Gita Devi; that she was the widow of Devi Chand; that the latter had gifted her the suit property and the mutation was, therefore, rightly sanctioned in her favour She claimed herself to be the nearest heir to the estate of Devi Chand, being her widow, and denied existence of any custom debarring Devi Chand from executing the gift deed.

The trial Court found that the Defendant Gita Devi or Gian Kaur had proved herself to be the widow of Devi Chand It was further held that Karam Singh who executed the said gift deed on behalf of Deri Chand was authorised to do so in favour of Defendant No. 1, Gita Devi alias Gian Kaur, and the same was therefore, valid. In view of these findings, the suit was dismissed In appeal, the learned Senior Sub Judge with Enhanced Appellate Powers reversed the said finding of the trial Court and came to the conclusion that the finding of the trial court that Gian Kaur is the widow of Devi Chand deceased was not sustainable as there was no cogent(sic) reliable convincing evidence to prove that she was the widow of Devi Chand. She might have lived with him as his(sic) keep for sometime but no marriage had taken place between the two. it was held. According to the observations of the lower appellate court, Gian Kaur was living with an aged man of 90 years only with a view to grab his property. It was further found that the said gift could not be held to be valid as there was no cogent proof that it ever came to the knowledge of Devi Chand in his life time. On these findings, the suit was decreed. Aggrieved with the judgment and decree of the lower appellate court, the Defendant has filed this Second Appeal.

The appeal was admitted as it was contended that a registered gift deed, Ex D5, was executed by Karam Singh who was attorney of Devi Chand, the owner of the property, by means of Power of Attorney Ex D4, in which power had been conferred en the attorney to alienate the property of Devi Chand by sale, gift etc., and the Appellate Court had set aside the said gift deed on the ground that in the Power of Attorney it was not specifically mentioned that the attorney was given power to gift the property in favour of Gian Kaur.

In view of this question of law on which the appeal was admitted, learned Counsel for the Appellant could not be allowed to challennge the finding of the lower appellate court on the question as to whether the denendant was the widow of Devi Chand deceased or not. In any case, the lower appellate court has discussed the entire evidence, and on an appreciation thereof a firm finding has been recorded that there is no convincing evidence to prove that Gian Kaur is the widow of Devi Chand. Not only that, admittedly Gian Kaur did not appear in the witness-box to state that she was the widow of Devi Chand. In these circumstances, the lower appellate court observed that "It is in evidence that she was Intentionally kept away by Bikar Singh who took her Power of Attorney and appeared in the winess-box himself My conclusion is that Bikar Singh and Karam Singh did not want to put Gian Kaur into the witness box apprehending that truth might not come on record from her cross examination "

Faced with this finding, the learned Counsel for the Appellant contended that from the evidence on record, it has been amply proved that Gian Kaur was living with Devi Chand during his life. According to the learned Counsel, this is evident from the document Ex D3, the voters list Thus argued the learned Counsel, from this evidence and the other evidence, i.e. , Ex D 6, by which the joint account was opened in the name of Gian Kaur and Devi Chand it is amply proved that the gift deed was made by Karam Singh, the attorney of Devi Chand, with the consent of the latter who died on 20th March, 1971, and he never objected to the gift deed; rather by opening the joint account, etc., with Gian Kaur, he gave his consent to the same Not only that argued the learned Counsel, even the mutation was sanctioned on the basis of the gift deed and no one objected to it at that time Reference was made to the will, Ex. D8/A, dated 15th May, 1969, to contend that prior to the gift dated 11th November, 1970, the property was given to Gian Kaur under the will being his wife but later on the gift deed was executed by Karam Singh, the attorney of Devi Chand

After hearing the learned Counsel for the parties and going through the relevant evidence on record, I do not find any merit in this appeal there is cogent evidence to prove that Devi Chand, doner, was a party to the gift deed (Ex. D5). Admittedly, the gift was never executed by Devi Chand himself; it was executed by Karam Singh, who held the power of Attorney, vide Ex. D4, dated 24th August, 1970 It is also not disputed that in the said Power of Attorney, though general powers of alienation, including sale, gift, mortgage, etc., have been given but no name has been mentioned for the purpose of making the gift. Not only that, even in the gift deed it is not mentioned that Karam Singh, attorney, was authorised by the donor to make the gift in favour of Gian Kaur. Section 122 of the Transfer of Property Act defines gift as follows:-

Gift is the transfer a 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.

Section 123 prescribes procedure for making gift. In order to be a valid gift, as per Section 122 ibid, it must be voluntary In case the gift deed is executed not by the donor himself but by a third person as his attorney, the power to gift the property must emanate from the donor. The said element is missing in the present case As observed earlier, from the evidence on record, it could not be successfully argued that Devi Chand ever authorised his attorney Karam Singh to make the gift in favour of Gian Kaur. The mere fact that the donee, Gian Kaur was living with Devi Chand was of no consequence as to prove the validity of the gift. Much reliance could not be placed on Ex. D3, the voters list for the year 1970, in which even Bikkar Singh DW is also shown to be residing in the house of Devi Chand although he did not belong to that village The joint account in the name of Shmt. Gian Kaur and Devi Chand (Ex. D6) dated 25th March, 1971, is also of no consequence because there is no evidence on record that Devi Chand ever presented himself to open the said account. The bank clerk who appeared as DW 6 has stated that he did not know Devi Chand. According to the record, he was identified by Jit Singh. Admittedly, the said Jit Singh was never produced in the witness-box to state that Devi Chand opened the said account and that latter v. as identified by him before the bank authorities. Thus, it could not be successfully argued on behalf of the Appellant. That the finding of the lower appellate court in this behalf was wrong in any manner so as to be intefered with in Second Appeal.

Faced with this situation, a reference was made to the registered will dated 15th May, 1969 (Ex D8/A) to claim the property by the Defendant Gian Kaur. Admittedly, no such plea was taken in the Written Statement nor was any issue claimed in this behalf. The mutation in her favour was sanctioned on 16th January, 197], on the basis of the gift deed. Devi Chand was alive at that time Surprisingly enough, he was not present at the time of sanction of the mutation.

In these circumstances, it could not be said that the deceased wanted to gift away the property in favour of Gian Kaur or he wanted to make her the owner under the will.

As a result of the above discussion, this appeal fails and is dismissed with costs.