IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 84 of 1998 Reserved on: 30.08.2010 Date of decision: 06.10.2010 Smt. Malka Devi and others ... Appellants Versus Ashok Kumar and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Romesh Verma, Advocate. For the respondents: Mr. K.D. Sood, Advocate. V.K. Ahuja, J. : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/defendant against the judgment and decree passed by the learned District Judge, Kangra, dated 21.10.1997, vide which the judgment and decree passed by the learned Sub Judge, Dehra, dated 26.3.1997, decreeing the suit of the plaintiff for declaration and for possession, was upheld. 2. Briefly stated, the facts of the case are that the respondent hereinafter referred to as the plaintiff (originally the suit was filed by the predecessor-in-interest of the plaintiff named Basanta) as against Amar Singh, now represented by the present appellant, hereinafter referred to as the defendant. It was alleged by the plaintiff 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 that the land in suit as detailed in the plaint was owned and possessed by the plaintiff. The plaintiff was an old man having no child and being an illiterate villager, had only the suit land for his livelihood. The defendant used to visit the house of the plaintiff and also posed himself to be nearest and dearest of the plaintiff and his wife. The plaintiff and his wife always dreamt the defendant as his son and had reposed confidence in him. On 17.8.1984, the defendant brought the plaintiff to Dehra on the pretext that the plaintiff has to fill up the papers for old age pension. However, the defendant got written a gift deed instead of the old age pension form and the gift deed was the result of misrepresentation and fraud. The plaintiff waited for the pension for 2½ years and then learnt from the Patwari that the land has been mutated in the name of the defendant. Hence, the suit for declaration praying that the gift deed dated 17.8.1984 be declared void. He also challenged that the parties are governed by Kangra custom and the possession of the suit land was never given to the defendant and as such, the gift deed was void. 3. The defendant took up preliminary objections in regard to maintainability, estoppel etc. On merits, he pleaded that he is owner in possession of the land under challenge on the basis of the gift deed executed by the plaintiff in favour of the defendant, which was a genuine document and it was out of natural love and affection and in lieu of services rendered to the plaintiff by the defendant and his family. The defendant admitted that the plaintiff was an old man, was issue less, but pleaded that the defendant and his family being relatives have served him for the last 15 years and spent huge amount for the treatment of the plaintiff. He also pleaded that the 3 land is being cultivated by the defendant and his family for the last 15 years. The defendant had been living in the house of the plaintiff for the said period and had been serving him still. It was denied that the defendant brought the plaintiff to Dehra on the pretext to file papers of pension and pleaded that the gift deed was duly executed and it was not liable to be declared as void. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the impugned gift deed dated 17.8.1986 is the result of undue influence and mis- representation as alleged, if so, its effect? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 4. Whether the plaintiff is estopped by his act and conduct from filling the suit? OPD 5. Whether the suit is barred by time? OPD 6. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiff and as against the defendant and decreed the suit of the plaintiff for declaration and for possession. 6. On appeal, these findings were upheld by the learned District Judge, Kangra, vide his impugned judgment and the appeal was dismissed. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 4 8. It was submitted by the learned counsel for the appellants that there were no allegations in regard to fraud and the only allegations made were in regard to undue influence and necessary ingredients were not there to make out a case for undue influence. Thus, it was submitted that the allegations made are vague in nature and have not been substantiated by any evidence and as such, those findings are required to be reversed. A plea was also taken that all the witnesses of the plaintiff have stated that the plaintiff is in possession, therefore no decree for possession could have been passed in the alternative and as such, the judgment and decree passed by the learned District Judge as well as by the learned trial Court are liable to be set aside. It was also submitted that once a valid gift deed had been executed by the plaintiff in favour of the defendant, it cannot be declared void and as such, the appeal is liable to be accepted. 9. On the other hand, learned counsel for the respondents had supported the impugned judgments for the reasons given therein supplementing it by the submissions that the ingredients of undue influence etc. were duly alleged and proved from the evidence. It was also submitted that there was also fiduciary relationship in between the parties and the plaintiff had reposed confidence upon the defendant and accordingly, the defendant by exercising undue influence got the gift deed executed in his favour, which was liable to be set aside. 10. It was also submitted that there were no allegations in regard to past services rendered by the defendant and since the allegations made in regard to undue influence etc. had been made in detail, which were duly proved and as such, the findings of fact 5 recorded by both the Courts below cannot be assailed before this Court. 11. The appeal was admitted by this Court on six substantial questions of law framed by the appellant and all the substantial questions of law need not be reproduced. Suffice to say that the main question raised during the course of arguments was in regard to plea of fraud and undue influence and misrepresentation. The appeal was also admitted on grounds of limitation, estoppel, own conduct and whether the evidence produced by the respondent was beyond the scope of pleadings. The appeal was not admitted on the plea raised during the course of arguments that since the plaintiff was proved to be in possession, no decree for possession in the alternative could have been granted, which question, therefore, does not arise for consideration at this stage. However, it has to be considered by this Court as to whether the plea of fraud, misrepresentation and undue influence were duly raised and proved and now it is the main question which arises for consideration. 12. A perusal of the plaint filed by the plaintiff shows that he is an old person, simple man and an illiterate villager and the plaintiff and his wife always dreamt the defendant as his son and had reposed confidence in him and used to be influenced by his views and guidance. Thus, it was alleged that the papers were procured by the defendant and these were allegedly for old age pension, but instead a gift deed was got executed. 13. A reference was made to the decision Asokan Vs. Lakshmikutty & Ors., 2008(3) Civil Court Cases 113 (S.C.), and the observation made in Para-15 rather shows that the gift 6 deed should be voluntary and it should not be subjected to any undue influence. 14. A reference was also made to the decision in Salig Ram & Ors. Vs. Banarsi Dass & Ors., 1997(1) Civil Court Cases 239 (H.P.), wherein on the facts of the case, it was observed by a learned Single Judge of this Court that the execution and registration of the gift deed was duly proved. However, the allegations of fraud, misrepresentation and undue influence were not proved. There was delivery of possession also in that case and accordingly, it was held that the gift was validly executed. This decision was on the facts of the case and in the present case, the allegations of misrepresentation and undue influence have been proved and there was no delivery of possession as shall be referred below and, therefore, this decision does not help the appellant. 15. A reference was also made to the decision in Narmadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker & Ors., 1997(1) S.L.J. 80, wherein there was execution of a registered gift deed and it was held that acceptance and delivery of property together make the gift complete. 16. Coming to the record of the case, it is clear that both the Courts below have referred to the evidence in detail. It has been clearly observed by the learned First Appellate Court that the donor was an old man and used to be guided by the defendant and the plaintiff and his wife reposed confidence in him. After referring to the oral evidence, the learned First Appellate Court had come to the conclusion that the possession of the suit land is with the donor and this fact was admitted by the defendant himself and similar 7 findings had been recorded by the learned trial Court also. Once it is proved on record that the possession of the land was with the plaintiff, who had not parted with the possession, therefore the document in question Ext. DW2/A cannot be held to be a valid gift deed. 17. The learned First Appellate Court had rightly relied upon the decision of the Apex Court in Narmadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker & Ors., 1997(1) S.L.J. 80, in that regard, wherein such observations were made by their Lordships. The gift deed cannot be said to be complete until and unless there was a delivery of possession and once the possession is still with the donor, it cannot be said that the gift deed was complete. A perusal of the statement of DW-1 Amar Singh, defendant, shows that the plaintiff was not having a child and he was serving the plaintiff and in lieu, the gift deed was executed in his favour. It was alleged in the gift deed that since the plaintiff remains ill and is weak and the defendant had been serving him and his wife and getting them treated and he gets maintenance and as such, the gift deed is being executed. The defendant in his statement had admitted that the plaintiff was fully dependent upon agriculture income and he was not getting any pension. He admitted that he used to visit defendant because of relationship and used to live there, which clearly does not prove that he has been living with the plaintiff and had been serving him for the last number of years. He admitted that the plaintiff had not relinquished the possession. 18. DW-6 Brij Kishore, Numberdar, is not a witness to the gift deed. He is only an identifier and his signatures are not there as a witness of the gift deed. Two witnesses to the gift deed as can be 8 read out are Gopal Chand, Up Pradhan and Fina Ram son of Mehal Ram, but both have not been examined by the defendant to prove that they were the witnesses known to the executant, in whom he had confidence. The defendant rather examined DW-3 Gian Singh, whose signatures are there. Under the name and signatures of this witness, his identification or parentage is not mentioned, to hold that he was also a witness to the gift deed since names of two witnesses were mentioned as witnesses, but the signatures of one Gian Singh are there, who states that his signatures are there on Ext. DW3/A. Gian Singh has further stated that he was Up Pradhan, but the name of the first witness has been mentioned and under the name, it has been mentioned as Up Pradhan and this Gian Singh was never shown as Up Pradhan in this document. A brief reference has been made to the statement of witnesses since the appeal had been admitted on this substantial question of law also. 19. Learned First Appellate Court had also observed that after procuring the gift deed, a suit was also filed against the plaintiff for declaration by the defendant claiming himself to be the tenant, which was dismissed. It was also observed by the learned First Appellate Court that the defendant wanted to grab the property of the plaintiff one way or the other. It was also observed on the basis of the evidence that the plaintiff was owner of 22 Kanals of land. The defendant got himself 16 Kanals of land by way of gift deed and also got himself recorded as tenant over 6 Kanals of land and nothing was left for the donor when he was dependent for his livelihood upon the land only being an agriculturist. Thus on the basis of the evidence and the reasoning given by the learned First Appellate Court, it had rightly 9 affirmed the findings of the learned trial Court decreeing the suit of the plaintiff. 20. No case is made out for considering the question at this stage as to whether the plaintiff was not entitled to the relief of possession in the alternative, if it is held that the plaintiff was in possession of the suit land as has been held by both the Courts below, but this was only to avoid any complication. This relief may have been granted by both the Courts below and once this was not taken as grounds of appeal, this question cannot be considered that the suit for possession may be in the alternative could not have been decreed by the Courts below, once they had held that the plaintiff had not parted with the possession of the suit land. This plea was not raised as the grounds of appeal and as such, is not being allowed at this stage. 21. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 06, 2010 Judge (BSS)