Mst. Kashu vs Nand Lal

A.L. Vaidya, J.—The present Appellant Smt. Kashu and Respondent were the real brother and sister. Appellant-Plaintiff Smt. Kashu filed a suit for declaration to this effect that the gift deed dated 2nd August, 1985 registered on 19th August, 1985 in favour of Defendant-Respondent was a result of fraud and was not binding upon the rights of the Plaintiff-Appellant qua the suit land which was the subject matter of the gift. According to the Plaintiff-Appellant, the Defendant-Respondent was her real brother, who promised her that he would be looking after her and shall be rendering services during her life time and shall also perform customary last rites after her death in case Plaintiff executes a Will of her property in his favour. It was further pleaded by the Plaintiff that she was trapped in the fraud played'' by the Defendant and the suit land was got transferred by the Defendant, through a gift deed dated 2nd August, 1985 registered on 19th August, 1985. According to the Plaintiff, Defendant stopped looking after her since March, 1988 and has been forcing her to leave the house. Thereafter, she came to know that in stead of will Defendant, playing fraud upon her got executed the gift, which was liable to be cancelled on this score. Plaintiff also pleaded that her husband died about ten years back who had given his entire property in favour of one Motion of Sh. Chet Ram and the Plaintiff was owning only the land which was the subject matter of the gift deed, which was 1/6th share of the land measuring 14 Bighas 1 Biswas as described in the plaint. Plaintiff in the alternative asked for maintenance at the rate of Rs. 300/- per month.

The suit was contested by the present Respondent-Defendant, who pleaded that Plaintiff was estopped to file the suit due to her own act, deed and conduct and that the suit was otherwise not legally maintainable as the possession has not been asked for by the Plaintiff. On merit, the relationship between the parties was admitted but the remaining averments were denied and it was averred that the Plaintiff executed the gift deed, under reference, in his favour with her free will and consent and the present suit has been got filed from her by S/Sh. Devi Ram and Daya Ram. According to the Defendant, he has been looking after the Plaintiff and on the instigation of the aforesaid persons, she has left the house. However, Defendant averred that he was ready to look after the Plaintiff and to take her in his house.

The parties were put to trial on the following issues by the trial court:

Whether the Plaintiff is estopped by her act and conduct from filing the suit as alleged? OPD.

Whether the suit in the present form is not maintainable as per preliminary objection in para No. 2 of the written statement, as alleged? OPD.

Whether the impugned gift dated 2.8.85 executed by the Plaintiff in favour of the Defendant was the result of fraud and mis-representation as alleged? OPP.

Whether the Plaintiff is entitled to maintenance as prayed for? OPP.

Relief.

Issues No. 1 and 2 were decided in the negative while issue No. 3 in the affirmative. Issue No. 4 was decided against the plaint and suit of the Plaintiff was decreed, by the trial court.

The aforesaid, Judgment and decree were assailed in an appeal before the first Appellate Court, which after hearing the parties, reversed the Judgment and decree passed by the trial court and as a consequences thereof accepted the appeal and dismissed the suit.

The aforesaid Judgment and decree have been assailed in the present appeal, on various grounds.

I have heard the learned Counsel for the parties and have minutely scrutinised the entire record.

It has been very forcefully contended on behalf of the Appellant that relationship of the parties were such that the Defendant was in a position to influence the will of the Plaintiff and taking undue advantage of that relationship, Defendant got executed a gift deed in his favour from the Plaintiff, which was liable to be set aside and cancelled, being the result of un-due influence, which rendered the fraud possible. In order to appreciate this aspect of the matter, at first instance, pleadings of the parties and the evidence examined thereon has to be appreciated.

Admittedly, there is no specific plea of un-due influence taken by the Plaintiff in her plaint. Her simple case is that on the asking of the Defendant that he would be rendering services to her throughout her life time in case Plaintiff executed a will of her property in his favour and, according to the Plaintiff, she executed some documents, alleged to be Will. There is nothing in her pleadings that relationship of the Defendant with the Plaintiff was that Defendant was dominating the will of the Plaintiff or that Plaintiff was acting blindly whatever Defendant proposed. There is nothing in the plaint or even in the evidence itself that before execution of this document Defendant had been residing with the Plaintiff continuously, so that such inference of dominating the Will of the Plaintiff could be inferred or presumed.

Learned Counsel for the Appellant-Plaintiff has cited certain precedents to get support for submissions put up by him. These precedents would be referred later on, after the evidence examined by the parties in support of their, respective case is appreciated.

As referred earlier. In so far as the execution of document is concerned, it is admitted by the Plaintiff. The sole point to be gone into on the basis of evidence is whether the Plaintiff has established that she consented to execute the Will but instead gift was got executed by the Defendant.

PW-1 is the Plaintiff herself, who has tried to support her case by deposing that her husband had died about 12 years back and thereafter she went to her brother Dhanna and mother where she was residing with them. She also stated that her brother Dhanna had also died. According to her, she and her mother inherited the estate of her brother Dhanna. According to her, she and her mother had been cultivating the suit land, but thereafter Defendant offered her to render services and to get her grains grind from the water-mill and to render other help in case she executed a will in his favour. She very specifically stated that thereafter she executed a will in favour of the Defendant. She admitted that she thumb marked the document in the Tehsil and prepared a Pacca will (registered will). She stated that she was illiterate. She also stated that after some time, Defendant turned her out of the house. Statement of this witness no where recorded that Defendant was continuously residing with her and he was dominating her will. She has not stated even a single word that she has been influenced by the advice of the Defendant on all matters. She simply stated that she executed the will but the Defendant got instead a gift executed in his favour. It is now to be seen whatever is stated, any legal credence could be given to that on the basis of other evidence examined during the trial. Plaintiff examined only one witness Sh. Daya Ram (PW-2) who stated that Plaintiff was cultivating the land along with her husband. He also stated that husband of the Plaintiff, during his life time, has kept some adopted son and after the death of the husband, Plaintiff went to her mother and she inherited 1/6th share at her father''s house which was about 2-1/2 bighas. He also stated that her mother died about three years back and till her death the suit land was being cultivated by the Plaintiff and she was in occupation of the same. According to him, after the death of the mother of the Plaintiff, Defendant forcibly occupied the suit land and Defendant had asked the Plaintiff to execute a will in his favour and had further undertaken to look after her during her life time. This witness further added that when the mother of the Plaintiff died, Defendant thereafter turned out the Plaintiff from his house. This witness during cross-examination stated that talk regarding execution of the Will did not take place in his presence, only he had heard this thing. He denied the suggestion that after the death of her husband, Plaintiff Smt. Kashu made one Jairam her husband. However, he added that Kashu had kept some Pangwala (a person hailing from Pangi) these days, but again volunteered that he was not kept as husband, but as servant. However, according to this witness that man is residing with the Plaintiff. He disclosed his ignorance that Plaintiff in the year 1985 of her own free will and consent executed a gift in favour of the Defendant; The version given by this witness will not carry any legal weight whatsoever so far as the Plaintiff''s case is concerned. Talk regarding the execution of the Will in favour of the Defendant did not take place in his presence and on that account he will not be helpful to prove the case of the Plaintiff that gift deed was the result of fraud as pleaded by the Plaintiff.

On the other hand, Defendant examined himself as DW-1 and supported his entire case. DW-2 is one Sh. Nirmal who was President of the Panchayat. This witness stated that he knew the parties and in his presence Kashu Plaintiff got executed a gift deed in favour of the Defendant. He stated that he was the marginal witness of the document (gift deed) and the contents of which were read over to the Plaintiff. Ex.D-1 is the gift deed, which contained signature of this witness. He also added that RoShan Lai Petition Writer scribed the gift deed and thereafter petition writer Sh.Roshan Lai read over the same and the Plaintiff Smt. Kashu after admitting its contents to be correct, thumb marked this gift deed (Ex.D-1). This witness also stated that after execution of the gift deed the same was presented before the Tehsildar, who also read over the contents of the same to Smt. Kashu Plaintiff, who was identified by the witness before the Registrar. Ex.D-2 were the signatures of this witness.

DW-3 is Sh. B. Om Parkash, Advocate, who stated that contents of gift deed (Ex.D/1) were dictated by him and were scribed by Sh. Roshan Lai, Petition Writer. He also stated that Petition Writer read over the contents and made all the contents understood to Plaintiff Smt.Kashu, who after admitting the same to be correct, thumb marked the same. This witness also signed this gift deed and it has been written that the gift deed was dictated by the witness.

Admittedly, the gift deed was a registered one and the endorsement of the Sub-Registrar on the reverse of the document dated 19th August, 1985 recorded that the contents of the gift were made understandable to Smt.Kashu Plaintiff, who admitted the same to be correct. It has also been referred in the endorsement that Plaintiff was identified by one Sh.Nirmal, one of the marginal witness of the deed. It has also been referred that all the persons were also identified by one Sh.Narsingh, Numberdar.

From the aforesaid evidence, case of the Plaintiff as pleaded, is not at all made out, but on the other hand the gift deed executed by the Plaintiff in favour of the Defendant was a result of free consent and free will of the Plaintiff. There is no doubt that relations between the parties were such whereby execution of the gift deed, being the result of un-due influence or fraud could not be ruled out but so far as this case is concerned, as per evidence discussed above, this aspect of the matter has not been legally established. On the other hand, it stood established that on account of the Defendant being brother of the Plaintiff she executed this, gift in his favour.

Learned Counsel for the Appellant has cited Mt. Sewti Vs. Rattan, , Ballo Vs. Paras Ram, and Smt. Nikko Devi v. Kirpa 1989 (1) Sim. L.C. 29. The ratio of these rulings would not be available to the case of the Plaintiff, especially when on factual side these reported cases are quite distinct to the present case.

In A.I.E. 1951 54, the donee was nephew of the donor, who was widow and who was living with her since the life-time of her husband. In this case, this nephew has been appointed by the donee as her son. It was held in this reported case that relationship existing between the parties was sufficient to raise a presumption that the deed had been obtained through undue influence which rendered the fraud possible. In the case, under reference, there is neither any pleading or evidence that Defendant had been continuously residing with the Plaintiff and relations were such that Defendant was in a position to dominate the will of the Plaintiff.

In Ballo''s case (supra) Plaintiff had alleged that there was some influence and pressure brought to bear upon him and that he was too old and simple an individual to be able to resist that pressure. In such circumstances it was held that burden of proving absence of undue influence rests upon the Defendant, if it was established by the Defendant that Defendant was in a position to dominate his will and that the transaction was unconscionable. The facts in this case were quite distinct so far as present case is concerned, especially in this reported case there was a plea regarding undue influence, though this plea was not very much specific but contained the allegations referred to above.

Similarly, in Smt. Niko Devi''s case (supra), it was no doubt held that if the facts revealed that Defendant was in a position to dominate the will of the Plaintiff, in that event, question of transaction being vitiated by undue influence was raised, the burden lies on the shoulder of the Defendant to prove that it was a result of free consent and will. In this case, the donor was living with the donee since her childhood and she was brought up by donee who performed her marriage also. The gift in this case was got executed when the girl was still living with him. These facts clearly reflected that possibility of donee dominating the will of the donor could not be ruled out. The circumstances in the case under reference are altogether different.

Thus, on the basis of the aforesaid facts, Plaintiff has not at all been successful in proving her pleadings, through legally competent evidence, but on the other hand the entire evidence examined during the trial clearly indicated that this gift was result of free will and consent of the donor.

In view of the foregoing reasons, I do not find any occasion whatsoever to interfere with the Judgment and decree passed by the first Appellate Court after correctly appreciating the law and evidence in this behalf. Present appeal is accordingly dismissed and as a consequences thereof, suit of the Plaintiff stands dismissed. Parties are left to bear their own costs throughout.