IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.218 of 1996. Judgment reserved on: 17th August, 2010. Date of Decision: 3rd September, 2010. _______________________________________________________ Shri Pawan Kumar and others ..Appellants. Versus Shri Tilak Raj and another ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants: Mr. Ajay Sharma, Advocate. For respondent No.1: Mr. N.K. Thakur, Advocate. For respondent No.2: Mr. Ashwani Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J. Vide order dated 29.2.2008, the second appeal was admitted on the following substantial questions of law: 1. Whether the learned first appellate Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgment and decree? 2. Whether the document exhibit PW1/A gift deed is not a valid document in view of non-delivery of the possession of the disputed property? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The facts giving rise to the present appeal, in brief, can be stated thus. The parties to the appeal belong to the same family. Respondent Tilak Raj and the donor of the suit property namely, Tehsildar (now dead) were the real brothers. Said Shri Tehsildar is stated to have executed the gift deed Ext.PW-1/A dated 24.6.1981 in favour of respondent/plaintiff Tilak Raj qua his share which was got registered on 10.7.1981. The mutation was got entered on the basis of this gift deed, but the revenue officer rejected the same and attested the mutation in favour of the parties to the suit on the basis of inheritance. Respondent/plaintiff Tilak Raj filed the suit for declaration to the effect that he has been in exclusive possession of share of Tehsildar qua the suit land on the basis of gift-deed and the appellant/defendants had no right, title or interest in the suit land and the mutation No.3409 in their favour qua the estate of Tehsildar was wrong, illegal and nonest on his rights. Thus prayed a decree of declaration with consequential relief of injunction. 3. The suit was resisted and contested by the appellant /defendants. They took up the plea of limitation, estoppel and also questioned the maintainability of the suit vis-à-vis the objection that it was bad for non- - 3 - joinder of necessary parties, by way of preliminary objections. On merits, they denied the execution of the gift-deed in favour of the plaintiff and further contended that said Shri Tehsildar was not competent to execute the same and alleged that it was a forged and sham-transaction. It was also contended that Tehsildar was an illiterate and rustic villager. They supported the mutation of inheritance qua the estate of deceased Tehsildar. 4. Defendant No.6 Sushma Devi was minor. Her Court- Guardian also filed the written statement and took up the same pleas. 5. In replication to the written statements the preliminary objections were denied and even paras of the plaint were reiterated. 6. On the pleadings of the parties, the learned trial Court framed the following issues: 1) Whether the plaintiff is exclusive owner in possession of the suit land, as alleged? OPP. 1A) Whether gift deed is the result of fraud and sham transaction? OPD. 1B) Whether deceased Tehsildar was incompetent to execute the gift deed? OPD. 1C) Whether gift deed is valid? OPP. 2) Whether the suit is within time? OPP. 3) Whether the suit is not maintainable? OPD. 4) Whether the suit is bad for non-joinder of necessary parties? OPD. - 4 - 5) Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD. 6) Relief. 7. The learned trial Court, after the complete trial returned the findings on issues No.1B and 3 in affirmative and others in negative, as a result thereof the suit filed by the plaintiff was dismissed holding that Tehsildar aforesaid was illiterate and ignorant. The contents of gift-deed were never conveyed to him and he did not understand the same. Marginal witness PW-2 Wattan Singh did not support the case of plaintiff that in his presence Tehsildar got scribed the document and it was read over and explained to him which he admitted to be correct. Wattan Singh aforesaid had stated to have signed the document at the instance of the plaintiff. He did not obtain personal acknowledgment of the contents of documents from the executant. Further that the plaintiff in his statement categorically stated that he got the land of Tehsildar in lieu of expenditure to the tune of Rs.40,000/- to Rs.50,000/-, i.e., the expenses incurred on the donor for his maintenance. Thus, the validity of the gift-deed could not be established by the plaintiff. Also, that the plaintiff cannot claim any cause of action against the defendants/appellants - 5 - unless there is a right, the mutation on the basis of gift- deed was rejected on 9.2.1982 whereas the suit for declaration and injunction was instituted on 2.11.1985, after a period three years. Thus, it was barred by limitation. 8. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned trial Court, the appeal was preferred by the plaintiff/ respondent before the District Judge, which was assigned to the learned Additional District Judge, who after hearing the parties and going through the evidence on record, took a different view. It was held that the gift-deed in question was executed by Tehsildar, which was scribed by an Advocate by profession, who categorically stated as PW-4 that the said document was read over and explained to its executant Shri Tehsildar who after admitting its correctness put his signatures on it. More so the said document was registered one and it is no where in the evidence of the plaintiff that Tehsildar was ignorant. Thus the trial Court wrongly arrived at the conclusion that the recitals of the said gift-deed were not clear. Since there was nothing on the record to show that Tehsildar was not in a position to understand properly and it was for that reason he had - 6 - to be cared and served. The learned first appellate Court held that the statement of DW-1 was not sufficient to dislodge the claim of the plaintiff to prove that the gift-deed was a forged document and also it was the result of undue influence. The learned first appellate Court relied upon the depositions of PW-1 and 2 aforesaid and reversed the impugned judgment and decree while allowing the appeal. Suit filed by the plaintiff as prayed for was decreed with costs, which has been assailed in this second appeal, which was admitted on the substantial questions of law. 9. Shri Ajay Sharma, learned Counsel for the appellants vehemently argued that the learned first appellate Court did not properly appreciate the evidence in its right perspective and also that it mis-appreciated the provisions of law applicable to the case. 10. Shri N.K. Thakur, on the other hand, supported the impugned judgment and decree passed by the first appellate Court. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 12. It is an admitted fact that Tehsildar was an illiterate and rustic villager. He had no issue and was - 7 - unmarried till his death. Respondent/plaintiff had banked upon the gift deed Ext.PW-1/A alleged to have been executed by said Shri Tehsildar on 24.6.1981, which was registered on 10.7.1981, i.e. after about 16 days. 13. In case of document having been executed by an ignorant and illiterate person and whosoever deals with such a person is under obligation to prove that such person understood the contents of the documents and had agreed formally to transfer his property. The usual presumption with respect to execution of the document by ignorant and illiterate person cannot be drawn. The duty is cast upon the Court to keep in mind the strict rule of law in respect of onus, where the executant happens to be ignorant and illiterate. Mere illiteracy, without ignorance will, of course, not be enough. A shrewd man of the world with business instincts and acumen may be illiterate, but he will not affix his mark to a document without taking special precaution to ensure that he has a true and accurate knowledge of the contents of that document. A rustic from a village, both ignorant and illiterate, stands on a different footing. He is in a position of special disadvantage and is likely to be dominated by the Will of a shrewd literate man and - 8 - will in all probability put his thumb impression relying upon so far as the contents of the document are concerned. In such type of a case, it must be further proved that thumb impression was given on the document by the defendant after learning the contents which had been explained to him. Thus the validity of the gift-deed has to be established by the plaintiff. 14. In order to prove that there should be a valid gift under Section 122 of the Transfer of Property Act read with Section 123 thereof, a valid gift inter-alia must satisfy the most essential ingredients that the donor must make the said transfer of property (i.e., gift) voluntarily and without consideration; and in the case of a gift of immoveable property, the transfer of property must be effected by a registered instrument signed by, or on behalf of, the donor, and attested by at least two witnesses, while gift of moveable property may be effected either by a registered instrument signed as aforesaid or by delivery of possession of the subject- matter of gift to the donee, and such delivery may be made in the same way as goods sold are delivered.” 15. It is one of the breaches of the essential requirements of the gift as stated above by PW-1 that it is made by the donor for consideration. Although, - 9 - the word ‘consideration’ has not been defined in the Transfer of Property Act, but there is no doubt that it has been used in the same sense as in the Indian Contract Act and excludes natural love and affection. It is of the essence of a gift as defined under the Transfer of property Act that it should be without ‘consideration’ of the same nature as defined in Section 2(d) of the Contract Act. 16. Further, admittedly, at the time of execution of the gift-deed Ext.PW-1/A, qua immovable property plaintiff Tilak Raj was present. As PW-1 he stated that the gift-deed was got scribed from Shri Surjit Singh Dadwal, Advocate, which was read over and explained to the executant, but he did not say that it was admitted by him to be correct and thereafter he thumb marked the document in token of its contents. He further simply stated that at the time of execution of the said deed two witnesses were present they became witnesses, as stated by PW-1. In cross- examination he testified that Tehsildar was bachelor, simpleton and illiterate person, therefore, he had to look after him. He had spent about Rs.40,000/- to Rs.50,000/- on him and in lieu thereof he had taken the suit land from him. He also stated that the Advocate who scribed the deed was got prepared by him as desired by him - 10 - (PW-1 aforesaid) and he himself procured the signatures of the executant. 17. Thus, the intention of the donee was to get the land of the donor for a consideration, which he had spent over him for his maintenance. Once the monetary consideration is proved, it ceases to be a gift. On the strength of the above statement, it can safely be inferred, rather concluded from his statement that since Tehsildar was a simpleton, rustic villager and he used to reside with the plaintiff. He was totally dependent upon him. He had spent money on him for his maintenance. Thus the plaintiff was able to dominate his Will. Therefore, the plaintiff has exercised the undue influence to get the deed executed. 18. Further, PW-2 Wattan Singh had been the class- fellow of the plaintiff though he identified his own signatures on the deed Ext.PW-1/A, but he categorically stated that he became a witness to the deed at the instance of the plaintiff. He particularly stated that the whole document was already written when he appended his signature and prior to him some signatures were already there. Even PW-4 Surjit Singh Dadwal, scribe of the aforesaid deed stated that he did not know the plaintiff, executant and any of the witnesses except Wattan Singh, who was also, - 11 - Lambardar. Therefore, how could it be said that the gift-deed was got scribed from him by the executant and not the plaintiff as per his wishes. Further, the document aforesaid does not fulfill the requirement of attestation by two or more witnesses. 19. In fact the gift-deed is a document which requires the attestation of two or more witnesses. Section 3 of the Transfer of Property Act defines the essential conditions of a valid attestation, which are as under: (i) Two or more witnesses have seen the executant sign, or affix his thumb mark to the instrument or have received from him, a personal acknowledgement of his signature etc.; and (ii) With a view to attesting or to bearing witness to this effect, each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, i.e., for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. 20. In the instant case, the aforesaid ingredients are absent. With reference to the statement of PW-2 - 12 - Wattan Singh, he cannot be even said to an attesting witness. The other witness(s) was/were not examined. There is also no evidence on record that the attesting witnesses aforesaid had received from the executant personal acknowledgement of his signature or mark in the document in question and that the attesting witness had signed the said instrument in the presence of executant. The perusal of the gift- deed aforesaid shows that on the first page only Wattan Singh, Lambardar has signed as a witness and on the second page Sukh Raj and Prithi Chand are cited other witnesses, whereas no witness has signed the other pages or at least at the end of the document by which it could have even been inferred that the said document was validly executed by the executant and attested by the witnesses aforesaid. The attestation of the gift-deed also does not spell out whether the deed in question was read over and explained to the executant in the presence of witnesses to the document. Although, PW-2 stated about the presence of Prithi Chand who had accompanied him, but there is no reference in the statements of any of the witnesses that whether Shri Sukh Raj was also present who is also alleged to have witnessed the execution of the said deed. - 13 - 21. Further, PW-2 Wattan Singh did not say that the donor aforesaid knew the contents of the document and further that whether it was read over and explained to him to which he admitted to be correct. There is also nothing on record to show that Wattan Singh witness had obtained the acknowledgment of his signature from the executant. In these circumstances, the statement of PW-1 assumes importance that he got the land in lieu of what has been spent by him for the maintenance of the donor. Thus the said document ceases to be a gift deed and further there is nothing on record to show that the document in question was placed for registration by the donor in the presence of witnesses to which he admitted to be correct. Therefore, no presumption can be attached to the registration in the absence of any certificate in conformity with Section 60 of the Registration Act. The first appellate Court has thus mis- appreciated the evidence and misapplied the law applicable to the present facts and circumstances of the case. Therefore, the judgment and decree of reversal passed by the first appellate Court is unsustainable and vitiates the impugned judgment and decree of reversal. The first substantial question of law is accordingly answered. Since the property in - 14 - question has been in joint possession of the parties to the suit, the second substantial question of law does not arise at all in view of the above findings. 22. No other point has been urged before me. 23. For the reasons aforesaid the impugned judgment and decree of reversal passed by the learned first appellate Court is hereby set aside. Consequently, the appeal is allowed and the judgment and decree passed by the learned trial Court in Civil Suit No.465 of 1985 RBT No.763 of 1989 dated 12.2.1993 dismissing the suit of the plaintiff is hereby restored. Parties are left to bear their own costs. September 3, 2010. (Surinder Singh), J. (rc)