Regular Second Appeal No.844 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 844 of 2008 Date of Decision: July 03, 2009 Ram Jiwan ...........Appellant Versus Chander Bose and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Mani Ram Verma, Advocate for the Appellant. ** Sabina, J. Ram Jiwan-plaintiff filed a suit for declaration to the effect that the release deed dated 22.2.2001 registered on 23.2.2001 by defendant No.2 in favour of defendant No.1 was illegal, null and void. Suit of the plaintiff was dismissed by the trial Court vide judgment and decree dated 15.2.2006. Appeal filed by the plaintiff against the said judgment and decree was also dismissed by the Additional District Judge, Rewari vide judgment and decree dated 30.10.2007. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge in paras 2 to 4 of its judgment, reads as under:- “2.Briefly stated the facts of the case of the plaintiff are that he and the defendants No. 2 and 3 are the real brothers and are descendant of common ancestor Bhai Ram. The plaintiff and the defendant No.3 are married, whereas the defendant No.2 is unmarried. The suit land as mentioned in para No. 2 of the plaint Regular Second Appeal No.844 of 2008 2 to the extent of 1/4th share was inherited by Kundan from his father Bhai Ram. The defendant No.2 had executed a release deed regarding the suit land on 22.2.2001 which was registered in the office of Sub-Registrar, Kosli on 23.2.2001 in favour of the defendant No.1. The said release deed is illegal null and void and is not binding on the rights of the plaintiff. The parties to the suit are the agriculturists and are fully dependent upon the agriculture who belong to Ahir caste and are residents of old Jhajjar/Rohtak District and are governed by customary law applicable to Ahir agriculturists in the matter of alienation. According to the custom, no agriculturist is entitled to alienate his ancestral property or change the natural right of succession of his collateral. The defendant No.2-Kundan is a very old person and he has lost his memory for the last two years. He is deaf for the last more than 20 years and is not able to decide about loss and profit. The defendants No. 1 to 3 are influential persons and managed the release deed by way of undue influence. The defendant No.2- Kundan never executed the release deed dated 23.2.2001 and the same is the result of fraud and mis-representation. The facts mentioned in the release deed are factually wrong because the defendant No.1 never rendered any service to the defendant No.2. As a matter of fact, the plaintiff has been looking after the defendant No.2 from the very beginning. Despite repeated requests and demands, the defendants have refused to admit the release deed dated 23.2.2001 as illegal, null and void and are also threatening to alienate the suit land forcibly and illegally. Regular Second Appeal No.844 of 2008 3 3. The defendant No.2 filed the written statement controverting the allegations of the plaintiff and inter-alia pleaded that he has got the right to execute the release deed in favour of the defendant No.1 in respect of the property. The answering defendant is residing with defendant No.1 for the last 20 years and the defendant No.1 was serving him. The answering defendant had executed the release deed dated 23.2.2001 in favour of the defendant No.1 without any undue influence or fraud. Objections were also raised that the suit is not maintainable; that the plaintiff has got no locus-standi to file the present suit and the suit is liable to be dismissed. 4. The defendant No.1 and 3 filed the separate written statement raising the plea that the plaintiff has got no cause of action and the suit is liable to be dismissed. The defendant No.2 himself had executed the release deed dated 23.2.2001 in favour of the defendant No.1 . No undue influence was ever used for getting the release deed executed in favour of the defendant No.1. The release deed dated 23.2.2001 is legal and binding on the parties.” On the pleadings of the parties, the following issues were framed:- “1. Whether the release deed dated 22.2.2001 registered on 23.2.2001 executed by the defendant No.2 in favour of defendant No.1 regarding the suit land is illegal, null and void and not binding on the rights of the plaintiff after the death of the defendant No.2?OPP Regular Second Appeal No.844 of 2008 4 2. Whether the plaintiff and defendant No.3 are entitled to succeed the suit land in equal share after the defendant No.2?OPP 3. Whether the plaintiff is entitled to injunction as prayed for?OPP 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the suit is bad for want of proper Court fee?OPD 6. Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPD 7. Whether the plaintiff has no locus standi to file the present suit?OPD 8. Whether the suit is bad for non-joinder of necessary parties?OPD 9. Relief” After hearing the learned counsel for the appellant, I am of the opinion that no interference is called for by this Court. Admittedly, the suit land was inherited by defendant No.2 from his father. Defendant No.2 was unmarried and issueless. He executed the release deed in dispute in favour of defendant No.1. The case of the plaintiff is that defendant No.2 had no right to execute the release deed in favour of defendant No.1. Since defendant No.2 was issueless at the time of execution of release deed, the suit property became self-acquired property in the hands of defendant No.2 and as such could deal with the suit property in the manner he liked. He could execute the release deed in favour of defendant No.1. The plaintiff failed to establish on record by leading medical evidence to the effect that defendant No.2 was deaf or that he had Regular Second Appeal No.844 of 2008 5 lost his memory at the time of execution of release deed. It has been noticed by the learned Additional District Judge that PW1 Ram Jiwan admitted in his cross-examination that defendant No.2 did not suffer from any disease nor had been treated by any doctor. It was further noticed that DW1-Bir Singh, Lambardar deposed that Kundan was hard of hearing and was not completely deaf. Defendant No.1, while appearing in the witness box, deposed that defendant No.2 was alive and was residing with him. Defendant No.2 was unmarried. Defendant No.2, in his written statement, admitted that the release deed had been executed by him in favour of defendant No.1. In these circumstances, both the Courts below rightly dismissed the suit of the plaintiff. No substantial question of law warranting interference arises in this regular second appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 03, 2009 arya