Regular Second Appeal No. 1049 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1049 of 2007 Date of decision : May 19, 2011 Savitri and others ....Appellants versus Kanwar Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Avnish Mittal, Advocate, for the appellants Respondents no. 2 and 5 ex parte Mr. Parveen Hans, Advocate for the remaining respondents L.N. Mittal, J. (Oral) This is second appeal by legal representatives of the plaintiff who was successful in the trial court but has been non-suited by the lower appellate court. Suit was filed by Murti plaintiff (since deceased and represented by appellants as her legal representatives) against Amar Singh defendant no. 1 (since deceased and represented by LRs) and against other defendants. In the suit, the plaintiff challenged registered gift deed dated 12.7.1957 regarding 214 kanals 18 marlas land and consequent mutation no. Regular Second Appeal No. 1049 of 2007 -2- 2956 dated 11.2.1958 allegedly executed by plaintiff in favour of defendant no. 1 and also subsequent transfer of 3/4th share of the suit land by defendant no. 1 in favour of his sons and other transferees who were added as defendants no. 5 to 24 later on. The plaintiff alleged that after the death of her husband, she was suffering from mental disorder, she lost her power to understand her good and bad and she was unable to understand the result of her acts. The plaintiff also alleged that in July, 1996, she wanted to gift the suit land to her daughter Savitri Devi and then she learnt of the impugned gift deed. Defendants no. 1 to 4 (original defendants) broadly denied the plaint averments. It was pleaded that plaintiff's husband Chhanga intended to transfer the suit land to Amar Singh defendant no. 1 and made oral Will in this regard. It may be added that defendant no. 1 is son of sister of plaintiff's husband. Pursuant thereto, the plaintiff herself executed the impugned registered gift deed dated 12.7.1957 gifting the suit land to defendant no. 1. Plaintiff was in her complete senses at that time. Possession of the suit land was also delivered to defendant no. 2 at the time of gift deed. Plaintiff had only one daughter i.e. Savitri Devi and had no male issue. For this reason, the plaintiff had kept Amar Singh with her. Amar Singh defendant no. 1 was persuaded to shift to the plaintiff's village to live with the plaintiff and rendered her services. It was pleaded that the plaintiff gifted other 133 kanals 12 marlas land to her daughter vide gift deed dated 13.3.1957. The plaintiff also gifted 48 kanals 10 marlas land Regular Second Appeal No. 1049 of 2007 -3- vide gift deed dated 18.11.1958 and 79 kanals 2 marlas land vide gift deed dated 3.9.1959 in favour of their own brother Munshi Singh. Similarly the plaintiff transferred the suit land in favour of defendant no. 1 by way of impugned gift deed. The impugned gift deed and the consequent mutation and subsequent transfers by defendant no. 1 were defended to be legal and valid. Defendants no. 5 to 24 also contested the suit and also pleaded the gift deed to be legal. They also took the plea of being bonafide purchasers. Learned Additional Civil Judge (Senior Division), Bhiwani vide judgment and decree dated 21.8.2002 decreed the plaintiff's suit. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Bhiwani vide judgment and decree dated 12.1.2007. Feeling aggrieved, the legal representatives of plaintiff have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that plaintiff was illiterate and she did not understand her action on account of death of her husband and the contents of the gift deed were not read over or explained to her. It was also contended that no attesting witness of the impugned gift deed has been examined by the defendants to prove due execution of the gift deed. Regular Second Appeal No. 1049 of 2007 -4- On the other hand, learned counsel for the respondents contended that both the attesting witnesses of the gift deed had since died and therefore, son of one of the attesting witnesses has been examined. It was also contended that the suit is time barred as it was filed 39 years after the execution of the gift deed. It was also submitted that possession of the suit land was also transferred to defendant no. 1 at the time of gift deed. I have carefully considered the rival contentions. The suit was filed on 16.7.1996 and registered on 18.7.1996 (wrongly mentioned as 18.6.1996 in the judgment of the trial court). The impugned gift deed is dated 12.7.1957. The plaintiff, thus, challenged the gift deed after 39 years. The suit is, thus, hopelessly barred by limitation. However, to bring the suit within limitation, the plaintiff took the usual plea that she learnt of the gift deed in July, 1996 only. This plea cannot be accepted. Plaintiff could not have been oblivious and ignorant of the impugned gift deed for almost 39 years if she had been in possession of the suit land as claimed by her. On the other hand, according to gift deed the possession of the suit land was transferred to defendant no. 1 and thereafter he and his transferees were recorded to be in possession of the suit land. The plaintiff has failed to prove that she remained in possession of the suit land even after execution of the gift deed. Consequently, her plea that she learnt of the gift deed in July, 1996 only cannot be accepted. The suit is, thus, not only hopelessly barred by limitation but it also depicts that the gift deed was legal and valid because otherwise the plaintiff would not have Regular Second Appeal No. 1049 of 2007 -5- remained silent for 39 long years. It is also significant to notice that the impugned gift deed is registered deed. Registration of the gift deed further adds to its authenticity. Non-examination of attesting witnesses of the gift deed has been fully explained because both the attesting witnesses had since died. However, son of one of the attesting witnesses has been examined as witness. Learned counsel for the appellants contended that the said witness was interested witness as his brother had purchased some land from defendant no. 1. May be on account of this, the said witness may have some interest but the fact remains that his father was attesting witness of the gift deed which was executed more than four decades before this witness appeared in the witness box. The impugned gift cannot be held to be invalid merely because the plaintiff was an illiterate lady. On the contrary, the plaintiff executed other gift deeds also i.e. gift deed dated 13.3.195 (four months prior to impugned gift deed) in favour of her daughter and gift deeds dated 18.11.1958 and 3.9.1959 in favour of her brother. The plaintiff was, thus, taking conscious decisions to execute different gift deeds. In the same manner, the plaintiff executed the impugned gift deed. For this reason, stand of the plaintiff that she was under mental shock and disorder on account of death of her husband also cannot be accepted to invalidate the impugned gift deed because the plaintiff executed the other gift deeds also Regular Second Appeal No. 1049 of 2007 -6- which she admitted to be correct. Thus, the plaintiff was in good mental condition and competent to execute the impugned gift deed also. In addition to it, it has to be noticed that plaintiff's husband had died in the year 1946-47 and the impugned gift deed is dated 12.7.1957 i.e. executed more than ten years after the death of her husband. Consequently, it cannot be said that plaintiff was still under mental shock on account of death of her husband when she executed impugned gift deed. There is also another significant aspect of the matter. The plaintiff did not even allege as to under what pretext the gift deed was got executed from her. She has not pleaded any particulars of fraud or misrepresentation etc. Thus, it is manifest that the plaintiff has voluntarily executed the gift deed and after 39 years, she has turned dishonest to challenge the gift deed. It would not be out of place to notice here that defendant no. 1 Amar Singh was son of sister of plaintiff's husband and was resident of different village but he shifted to plaintiff's village and apparently he was serving the plaintiff who had no male issue. Defendant no. 1 shifted to the plaintiff's village only on account of attachment between plaintiff and defendant no. 1 or on account of wish of the plaintiff's husband which is recited in the impugned gift deed itself that the gift deed was being executed by the plaintiff on account of wish of her husband. For the reasons aforesaid, I find that this appeal has no merit. Finding recorded by lower appellate court is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal nor it is Regular Second Appeal No. 1049 of 2007 -7- based on misreading or misrepresentation of evidence. The said finding, therefore, does not warrant interference in exercise of second appellate jurisdiction. This appeal does not raise any question of law much less substantial question of law for determination. Accordingly, the appeal is dismissed. ( L.N. Mittal ) May 19, 2011 Judge 'dalbir'