IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 570/2010 Reserved on: 15.7.2011 Decided on:19.7.2011 ___________________________________________________ Bensu Devi. …Appellant. Versus Kishan Chand and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. N.K. Thakur, Advocate. For the Respondents : Mr. Ashok Sharma, Advocate for respondents No.1 and 2. Respondents No. 3 to 6 already ex parte. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 29.9.2010 rendered by the learned District Judge, Chamba in Civil Appeal No.4 of 2010. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 instituted a suit against the appellant-defendants (hereinafter referred to as ‘defendants’ for convenience sake). According to plaintiff, he was maternal uncle of defendant No.1 Smt. Bensu and Smt. Nimmu is his real sister. According to him, defendant No.2 was putting up with the plaintiff and defendant No.1 was looking after them. She got married and started putting up with her husband in her matrimonial village. He was made to believe that defendant No.1 will be rendering services and will perform all the last rites after his death by defendant No.1. In these circumstances, he was taken to Tehsil Office for getting a ‘will’ executed where defendant No.2 Nimmu, who is also his real sister, also joined him and stated that there will be a joint ‘will’ in favour of defendant No.1, thereby a joint will was agreed to be executed. However, defendant No.1 Bensu in connivance with the revenue staff, Sub Registrar and Document Writer, prepared a gift deed and the same was registered. It was never read over to the plaintiff or defendant No.2. They came to know about this fact when defendant No.1 threatened to take forcible possession of the suit land. The plaintiff has prayed that declaration be granted that no gift deed was ever executed by the plaintiff and defendant No.2 in favour of defendant No.1 and 3 consequent mutation Nos. 504 and 600 dated 27.11.2001 were illegal and the gift deed was also null and void. 3. The suit was contested by defendant No.1. According to the averments contained in the written statement, no ‘will’ was executed by the plaintiff or defendant No.2 in her favour. Plaintiff and defendant No.2 were happy with her and on account of services having been rendered by her, gift deed was executed and they have also parted with the possession, which was with her. Mutations were attested in accordance with law. 4. Defendant No.2 has filed separate written statement and has admitted the claim and averments made by the plaintiff by submitting that she or the plaintiff never executed a gift deed in favour of defendant No.1, but on account of the services rendered by her and she having agreed to render services throughout their lives and perform their last rites, she has executed a ‘will’ in her favour. It is further stated that defendant No.1 in connivance with the revenue staff has got gift deed executed instead of a ‘will’ thereby the suit of the plaintiff be decreed. The replication was filed by the plaintiff. Issues were framed by the trial court on 8.1.2008. The trial court decreed the suit vide judgment dated 4.12.2009 by setting aside gift deed and the mutation Nos. 504 and 4 600 attested on the basis of gift deed were also set aside and defendant No.1 was restrained from alienating the suit land. Defendant No.1 preferred an appeal before the learned District Judge. He dismissed the same on 29.9.2010. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the findings of the learned courts below in setting aside the gift beyond the scope of section 126 of the Transfer of Property Act, are unsustainable? 2. Where a document, i.e. gift deed is proved to have been validly executed and registered under the Registration Act, can be set aside on the sole statement of the donor that it has been procured by fraud and misrepresentation without there being any ingredient pleaded and proof with regard to fraud and misrepresentation? 3. What is the effect of a deviated statement of one of the marginal witnesses to show that in fact ‘will’ was executed and not the gift and such statement can be believed in view of fact of registration of the document as gift? 5. Mr. N.K. Thakur has vehemently argued on the basis of substantial questions of law that the will dated 16.11.2001 was valid and the mutations attested on the basis of gift deed dated 27.11.2001 are also legal and binding between the parties. He then contended that both the courts below have misread and misconstrued the oral as well as documentary evidence. 5 6. Mr. Ashok Sharma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the records carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. The gift deed was executed on 16.11.2001. It was registered before the Sub Registrar. Plaintiff has appeared as PW-2. He led his evidence by way of affidavit Ex.PW-2/A. According to the recital in the affidavit, he was an illiterate man, handicapped and unmarried. He was putting up with his sister and the daughter of the sister, i.e. defendant No.2 and Bensu. He was told that in case ‘will’ is executed in favour of defendant No.1, she will render services throughout life and will look after him. He accompanied by defendant No.1 executed a ‘will’ on 16.11.2001 in favour of defendant No.1. However, in connivance with the revenue officials and Document Writer in place of ‘will’, gift deed was recorded. He being illiterate did not know that instead of ‘will’, gift deed has been got executed from him. This fact was also not disclosed to him by the Sub Registrar, i.e. DW-1. The 6 revenue entries were also wrongly recorded on the basis of illegal gift deed. He further testified that he has put his thumb impression on the ‘will’ and no gift deed was ever executed by him. He was not aware that the identifier was Pradhan, Gram Panchayat Dehgran. He denied the suggestion that Bensu was cultivating the suit land but stated that he was cultivating the suit land. 9. Plaintiff has also produced PW-1 Bhagat Ram. He has tendered his evidence by way of PW-1/A. He was also one of the marginal witnesses to Ex.DW-1/A. According to him, no gift deed was ever executed but only ‘will’ was executed whereby defendant No.1 agreed to render all services and to perform the last rites after the death of plaintiff and defendant No.2. He has further stated that the house of defendant No.1 was in village Shalela, which is at a distance of 15-20 kilometers from the house of plaintiff. According to him, the plaintiff was handicapped and he has never executed any gift deed in favour of defendant No.1. He had only attested ‘will’. In his cross-examination, he has deposed that he was not aware that any gift deed was executed on 16.11.2001. He has denied the suggestion that he has put his signatures on gift deed and Paras Ram also affixed his signatures. According to him, Paras Ram was not present on that day. 7 He has admitted that he has put his signatures out of his free will but stated that the document was never read over to him by the Tehsildar. He denied the suggestion that the document was read over to him and thereafter he has affixed his signatures. He has denied the suggestion that possession of the suit land was with Bensu. 10. Defendant has appeared as DW-2 and has led his evidence by way of affidavit Ex.DW-2/A. According to her, prior to her marriage, she used to put up jointly with her mother and maternal uncle, i.e. plaintiff and defendant No.2. She has denied that her mother and maternal uncle had executed a ‘will’ in her favour but stated that it was a gift deed. She denied the suggestion that will was executed on account of the services rendered by her. 11. DW-3 is Paras Ram son of Dyalu Ram. He was a Document Writer at Churah. According to him, a gift deed was executed on 16.11.2001 by the plaintiff and defendant No.2 in favour of defendant No.1. He has tendered his evidence by way of affidavit Ex.DW-3/A. In his cross-examination, he has admitted that the last three pages of his register were torn off. He has denied the suggestion that he has later on planted a page carrying entries qua Sr. No. 723 to 725 at his own. 8 12. DW-1 is Hem Chand. He was working as Tehsildar, Tissa at the relevant time. According to him, gift deed No.7 was produced for registration by the plaintiff and Nimmu Devi on 16.11.2001. The contents of the same were read over to them by him. Thereafter, they put their signatures and consequently it was ordered to be registered. Bhagat Ram and Paras Ram had also appeared. They were identified by Gais Lal, Pradhan, Gram Panchayat, Dehgran. He admitted that he did not know Kishan, Bensu, Nimmu or the witnesses personally. 13. DW-4 is Paras Ram son of Haria Ram. He has deposed on oath that gift deed was executed on 16.11.2001. According to him, plaintiff and defendant No.2 have appended their thumb impressions. The gift deed was produced before the Sub Registrar. He also read over and explained to them the contents of gift deed. However, in his cross-examination, he has admitted that he was brought by the husband of defendant No.1. He has also admitted that defendant No.1 was residing in village Shalelabari. The present suit land is situated in Donna village. 14. What emerges from the facts enumerated hereinabove is that plaintiff Kishan Chand was old rustic villager. He was made to believe that he was executing a 9 will, but in fact, gift deed was got executed from him. The contents of gift deed were never read over to the plaintiff. He has denied that the possession was handed over to defendant No.1 Bensu. One of the witnesses, PW-1 Bhagat Ram has categorically deposed that no gift deed was ever executed but only ‘will’ was executed. According to him, the house of defendant No.1 was in village Shalelabari at a distance of 15-20 kilometers from the house of plaintiff. Plaintiff was handicapped and he has never attested a gift deed. The stamp papers had been purchased, as is evident from Ex.DW-1/A, for the purpose of sale deed, however, the gift deed was got executed on this. It was the duty cast upon DW-1 to see how the gift deed has been written on the papers, which were primarily purchased for the purpose of sale deed. There is no endorsement on Ex.DW-1/A of the Tehsildar that the parties were identified by Pradhan. Statement of DW-3 Paras Ram does not inspire confidence. The last three pages of his register were torn off. He could not explain why three papers of register were torn off. It was his duty to ensure that the stamp papers, which had been purchased for the purpose of sale deed, were being used for the purpose of preparing gift deed. Pradhan, Gram Panchayat, who according to DW-3 has identified the 10 parties, has not been produced by defendant No.1. The house of defendant No.1 was at a distance of 15-20 kilometers from the house of plaintiff. Thus, it cannot be believed that she used to cultivate the land. Rather, it has come in the evidence that possession always remained with the plaintiff. The defendant has not placed any tangible evidence on record to establish her possession. She has not placed on record the latest copy of jamabandi and Khasra Girdawari to prove her possession. In view of this, mutation Nos. 504 and 600 dated 27.11 were also got executed on the basis of gift deed, which was not validly executed. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 19.7. 2011 *awasthi*