IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 28 of 1998. Judgment Reserved on November 25, 2008. Date of decision: 27th November, 2008. Smt. Leela Wati and another ….Appellants. Versus Smt. Updesh Kumari ….Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the appellants Shri Sanjeev Kuthiala, Advocate. For the respondent Shri Bhupinder Gupta, Sr. Advocate, with Shri Janesh Gupta, Advocate. Dev Darshan Sud, J. (Oral). This is the plaintiffs’ appeal against the concurrent findings of the two Courts below dismissing the suit instituted praying for a decree of declaration claiming the land as described in the plaint and the structures standing thereon as owned and possessed by the plaintiffs and declaring gift deed Ex.DX dated 12.2.1985 as void being the outcome 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - of fraud, misrepresentation, connivance and undue influence. Consequential relief for annulment of all revenue records was also sought for. The learned trial Court, on crucial and vital issue as to whether Ex. DX was the outcome of fraud, misrepresentation etc. held against the plaintiffs. An appeal preferred by the plaintiff in the Court of learned Additional District Judge was also dismissed. The plaintiff had pleaded that she was an old lady of 75 years and has only one daughter Leelawati appellant No. 1 married to Balwant Singh, appellant No. 2. She pleaded that she fell ill in the year 1983 and was brought to village Nakroh in tehsil Amb, District Una by her daughter Leelawati for medical treatment. She was treated by one Dr. Ashok Sood. She recovered from the illness in September, 1984, but was advised by the doctors to continue medicines regularly. It was pleaded that the gift Ex. DX purportedly executed in favour of the respondent was the outcome of active fraud and undue influence exercised by the respondent – defendant, who is the plaintiff’s sister’s daughter (niece of the plaintiff). It was urged that the - 3 - respondent is a very clever and cunning person who came to the village of the plaintiff in October, 1984 and persuaded her that she would look after her. Taking undue advantage of the medical condition of the plaintiff, the defendant-respondent in whom the plaintiff reposed confidence, had the registered gift deed Ex.DX executed on the pretext that her signatures were required for the purpose of enhancement in pension. The learned appellate Court has dismissed the suit. On reappreciation of the entire evidence on record, the appellate Court concurred with the conclusions arrived at by the learned trial Court. This appeal was admitted by this Court on 14.1.1998, although no substantial question of law was specified. Learned counsel for the appellants has urged questions 1, 3 and 6 for consideration which are: 1. Whether on a proper construction of the gift deed of Vidyawati (Original plaintiff), it was established on record that she had executed the same on her own free will and volition of execution thereof was established? 3. Whether the right to revoke the original gift vested in the donor and the legal representatives on the - 4 - grounds of fraud, undue influence, and if so, whether the gift and the general power of attorney were valid? 6. Whether the execution of Ex.PY, General Power of Attorney, Ex.DX, Gift Deed, on the same date in favour of a stranger and distant collateral, along with the scrutiny of pleadings and evidence established that the same were executed by exercise of fraud and undue influence? Question No. 1. This is the crucial question to be determined. PW-2 Sham Lal, husband of the defendant, who was summoned to prove the allegations of the plaintiff, did not in any manner support the case pleaded. Dr. Ashok Sood proved on record Ex.PW-3/A and has stated that deceased Vidyawati who executed the contentious gift Ex.DX was suffering from arthritis and was treated by him between September, 1984 to July 1986. He states that medical certificate Ex.PW-3/A was issued at the instance of plaintiff No. 2 Balwant Singh and that arthritis does not affect the mental faculty of a person. The court holds that there is nothing to show or establish that the deceased was not possessed of her complete mental faculties. In fact - 5 - the evidence of the plaintiff deceased Vidyawati was clear and unequivocal that she is a retired Headmistress of a Primary School. She states “mujhe gathia ki bimari na hai, balki pet main dard hona shuru ho jata hai.” (I do not suffer from joint pains but I have pain in my stomach). She states that her signatures on the gift deed were forcibly obtained by the defendant. The evidence is entirely at variance with the pleadings. She has not only disowned the illness pleaded but further states that she suffers from some stomach ache. The gift deed Ex.DX is a registered document and would attract presumption attached to it under Section 60(2) of the Indian Registration Act. (See: Shri Kripa Ram and others v. Smt. Maina, 2002 (2) Shim. L.C. 213). The story put forth by the plaintiff that the gift deed was the outcome of fraud etc. cannot be accepted. She is a retired Headmistress and knew and understood the contents of the papers she was signing. It cannot be believed by any stretch of imagination that she did not know what she was signing. Both Courts having concurrently found as a fact that no fraud, misrepresentation or coercion was practiced on the deceased plaintiff Vidyawati, - 6 - this question is answered against the appellants herein. Questions 3 & 6 These questions are answered against the appellants as I have held that gift deed Ex.DX was not the result of fraud, misrepresentation, undue influence etc. The appeal is accordingly dismissed. There shall be no order as to costs. Pending applications shall stand dismissed. November 27, 2008 (PC). (Dev Darshan Sud), J.