IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 16 of 2000. Reserved on: 04.07.2011. Decided on: 12.07.2011. ______________________________________________ Gian Chand and another. … Appellants. Versus Pritam Chand and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. Ajay Sharma Sharma, Advocate. For the Respondents : Mr. Inder Sharma, Advocate vice Mr. N.K. Thakur, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 30.11.1999 passed by the learned District Judge, Una in Civil Appeal No.154 of 1993. 2. Material facts necessary for the adjudication of this regular second appeal are that Kamla Devi alias Kamli, respondent/plaintiff (hereinafter referred to as”the plaintiff” for convenience sake) instituted a suit in the Court of Sub Judge 1st 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - Class, Court No.II, Amb for declaration to the effect that she was owner in possession of the suit land as per details given in the plaint as entered in the jamabandi for the year 1986-87, situate in village Takarla Majra Dhandari, Tehsil Amb, District Una and the gift deed dated 21.10.1986 registered on 27.10.1986 was the result of fraud and mis-representation having no effect on the right, title and interest of the plaintiff and further that the fixed deposit No.21/390 dated 22.8.1986 for ` 30,000/- and No.21/449 dated 4.10.1986 for ` 20,000/- was the sole property of the plaintiff. According to the averments contained in the plaint, plaintiff’s husband was serving in Indian Railway and he died in 1985. She was solely dependent upon the relatives of her husband being illiterate. The appellants/defendants (hereinafter referred to as “the defendants” for brevity sake), took undue advantage of the illiteracy of plaintiff and persuaded her to execute the gift deed in their favour on 21.10.1986, which was registered on 27.10.1986 in the office of Sub-Registrar, Amb, which was the result of fraud and misrepresentation. It was represented to the plaintiff that her signatures were obtained for preparing the General Power of Attorney and she was not aware of the fact that the document, which was being executed by her, was a gift deed. She succeeded to the property after the death of her husband in the year 1985. 3. The suit was contested by the defendants. According to them, the gift deed has been executed by the plaintiff with her - 3 - free will and without any pressure, out of love and affection and in lieu of the services rendered by them. The gift was scribed on 21.10.1986 and the same was presented before the Sub-Registrar for registration on 27.10.1986. The possession of the suit property was delivered to them and since then they were coming in possession of the suit land as owners. 4. Replication was filed by the plaintiff. The learned trial Court framed the issues on 20.6.1989 and 20.5.1993. The trial Court decree the suit for declaration that she was the owner in possession of the land detailed in the plaint and she was the sole owner of fixed deposits No.21/390, dated 22.8.1986 for ` 30,000/- and 21/449 dated 4.10.1986 for ` 20,000/-, on 2.7.1993. 5. Thereafter, the defendants preferred an appeal before the learned District Judge, Una. He dismissed the appeal on 30.11.1999. Hence, this regular second appeal. 6. The appeal was admitted by this Court on 11.5.2000 on substantial questions of law No. 2 and 3 as formulated at page 7 of the paper book. 7. Mr. Ajay Sharma, learned counsel for the defendants has vehemently argued that both the learned Courts below have misconstrued and misread the statements of PW-1, DW-2 and DW-3. According to him, the defendants have proved the ingredients required as per Section 123 of the Transfer of Property - 4 - Act. He then contended that the possession of the suit property was handed over by the plaintiff to the defendants. 8. Mr. Inder Sharma, Advocate appearing vice Mr. N.K. Thakur, Advocate for the plaintiff(s) has supported the judgments and decrees of both the courts below. 9. I have heard the learned counsel for the parties and gone through the record carefully. 10. Since both the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 11. PW-1 has testified that she was brought to Amb and at the instance of the defendants her thumb impression was obtained, but she never executed the gift deed. She has deposed that the defendants were her nephews and she did whatever they wanted her to do and was under their influence. 12. The gift deed was scribed on 21.10.1986 vide Ex.DW- 2/A. It was registered on 27.10.1986. 13. DW-1, Gian Chand has admitted that the plaintiff was an illiterate lady and she had received the retiral benefits on the death of her husband. She remained with them for 3 years. The gift deed was executed at her own free will. She has not claimed interest amount on the sum of ` 50,000/-. 14. The gift deed has been scribed by Gulwant Singh. He has not been produced as a witness. DW-2, Kashmiri Lal and - 5 - DW-3, Waryam Singh were the marginal witnesses to the gift deed. According to DW-2, Gulwant Singh had scribed the gift deed and plaintiff appended her thumb impression after the contents of the same were explained to her. According to him, the gift deed was registered on the same day. 15. DW-3 Waryam Singh is another marginal witness. According to him, the gift deed was executed and registered on the same day. He has admitted that the plaintiff was an illiterate lady and she did whatever the defendants wanted her to do. 16. What emerges from the evidence produced by both the parties is that the plaintiff was an old illiterate lady. She lost her husband. She was under the influence of defendants. She was brought to Amb by the defendants. Her thumb impression was obtained. However, plaintiff has deposed that she has never executed a gift deed. The gift deed was executed on 21.10.1986. According to DW-2 and DW-3, the same was registered on the same day. However, a bare perusal of Ex.DW-2/A makes it abundantly clear that the same was registered on 27.10.1986. DW-2 and DW-3 have also testified that they have never come back to Amb after 21.10.1986. This is a strong suspicion, which has not been removed or explained by the defendants. 17. The defendants have not led any evidence to prove that the possession was handed over to them at the time of execution of the gift deed. However, as per jamabandi for the year - 6 - 1986-87, Ex.P-1, the suit land was joint and plaintiff was in possession of Khasra No.981 as co-sharer. The defendant have failed to prove the valid execution of Ex.DW-2/A, dated 21.10.1986. There is no explanation given by the defendants why Gulwant Singh, who had scribed the gift deed, was not produced. 18. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the regular second appeal and the same is dismissed. Ad-interim order dated 14.1.2000, made absolute on 17.7.2000 is vacated. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. July 12, 2011. (sck).