IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.467 of 2000 Date of decision : June 1, 2010 Hari Singh …Appellant. Versus Malo Devi and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anand Sharma, Advocate. For the Respondents : Mr. I.D. Bali, Senior Advocate, with Mr. Virender Bali, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether the learned Courts below were right in holding that the gift deed executed by the deceased Defendant No.1 Chuhru in favour of Defendant No.2 was not wrong and illegal ignoring the fact that three days prior to the execution of the said gift deed the deceased on 10.11.1994 had executed a ‘Will’ in favour of the appellant and the defendant No.2 wherein it had been categorically mentioned that after execution of the earlier ‘Will’ in favour of Defendant No.2 on 12.11.1993, the defendant no.2 had not only refused to serve the deceased Sh. Chuhru and his wife but has even stopped talking to them? 2. Whether the respondent No.2 was not required to examine at least one attesting witness of the gift deed in accordance with Section 68 of the Indian Evidence Act? 3. Whether the learned Courts below have ignored the fact of Ex-PW-3/A and Ex-PW- Whether reporters of the local papers may be allowed to see the judgment? …2… 3/B and mis-read the documents Ex.P-2, P-3, P-5 and P-6? 4. Whether the learned Courts below have mis-read and mis-interpreted the documents on record and, therefore, arrived at wrong conclusion? 2. Appeal has been filed by the plaintiff against the judgment and decree dated 4th July, 2000 of learned District Judge, Chamba, whereby his appeal against the judgment and decree dated 29th June, 1999 of the trial Court, dismissing his suit, has been dismissed. 3. Plaintiff filed a suit against his father Chuhru, now represented by his LRs respondents No.1 to 6, as also his brother Budhia (respondent No.2), for declaration that gift deed dated 14th November, 1994, executed by Chuhru, in respect of land bearing Khasra Nos.86, 582 and 742, measuring 6 bighas 11 biswas, was illegal, void and not binding upon him, as the property gifted, was ancestral and as such Chuhru had no right to make gift thereof. It was also stated that only three-four days before the execution of gift deed Ex. P-1, Chuhru had executed Will Ex. PW-3/B, bequeathing his entire property in favour of the plaintiff and defendant Budhia, excluding his third son Karam Singh, because he had succeeded Deepu, his uncle, under a Will. It was stated that defendant No.2 Budhia, using undue influence upon Chuhru, as the latter had been living with him, got the gift deed executed in his favour. …3… 4. Common written statement was filed by late Chuhru and Budhia, in which it was denied that the property was ancestral and the gift deed Ex. P-1 had been made by Chuhru, on account of any influence exerted by Budhia. Various preliminary objections were also raised. It was stated that the suit was bad for non-joinder of necessary parties, plaintiff was estopped from filing the suit by his acts and conduct, suit was not maintainable, plaintiff had no cause of action to file the suit and valuation of the suit for the purposes of Court fee and jurisdiction had not been done properly. 5. Trial Court framed various issues, on the pleadings of the parties, and concluded that the property was not joint or Hindu coparcenery property nor was Chuhru holding the suit property as Karta of joint family. Gift deed was held to have been executed, without any undue influence. Suit was held to be not maintainable. Consequently, decree dismissing the suit was passed. Appeal filed by the plaintiff-appellant in the Court of District Judge stands dismissed. 6. I have heard the learned counsel for the parties and gone through the evidence. 7. It is submitted by the learned counsel for the appellant that when, on 10th November, 1994, Chuhru had executed a writing cancelling an earlier Will dated 12th November, 1993, which writing is Ex. PW-3/A, on the …4… ground that defendant No.2 Budhia, who was a beneficiary under that Will, had stopped rendering services to him, after the execution of the Will and not only that he had even stopped talking to him and his wife, there could not have been a change of mind within four days to the extent that Chuhru would have executed gift deed Ex. P-1, voluntarily. 8. It is no doubt true that in Ex. PW-3/A, the writing regarding cancellation of Will, it is written that defendant No.2 Budhia had stopped rendering services to Chuhru and his wife and had even stopped visiting them and talking to them, but after cancelling the earlier Will he executed another Will on the same day, which is Ex. PW- 3/B, by which he bequeathed his entire property to the plaintiff and defendant No.2 Budhia, in equal shares, meaning thereby that he was not so displeased with defendant Budhia as to completely disinherit him. 9. Abovestated position apart, it is the case of the plaintiff himself, vide Para-8 of the plaint, that Chuhru was dependent upon defendant No.2 Budhia and taking advantage of this fact, he exercised undue influence upon Chuhru to execute gift deed Ex. P-1, in his favour. Now, when according to the plaintiff himself, Chuhru was dependent upon Budhia, it was but natural for him to have given some property to him, in excess of the property …5… bequeathed to the plaintiff alongwith defendant No.2 Budhia, vide Will Ex.PW-3/B. 10. In view of the abovestated position, substantial question of law No.1 is answered against the appellant. 11. There was no need for the defendants to have proved gift deed Ex. P-1. Gift deed was executed by Chuhru in favour of his son Budhia. Both Chuhru and Budhia were impleaded as defendants. In the plaint itself, it is mentioned that Chuhru had made a gift in favour of Budhia. Defendants also admitted in their written statement that the gift deed had been executed. When the execution of the gift deed was not in question, where was the need for examining any witness to prove the execution of the gift. So, substantial question of law No.2 is also answered against the plaintiff. 12. Effect of documents Ex. PW-3/A and Ex. PW-3/B on gift deed Ex. P-1 has already been discussed, while answering substantial question of law No.1. As regards the other three documents, Ex. P-1, Ex. P-2 and Ex. P-3, they all are entries in the revenue papers. In these revenue papers, Chuhru, the donor, is recorded as owner of the bequeathed property alongwith some other property. There is absolutely no evidence, in the form of entries in the revenue papers, showing that the gifted property, i.e. land bearing Khasra Nos.86, 582 and 742, had been inherited by Chuhru from his father Mani Ram or from his grandfather …6… Indru. In the first appellate Court, two documents Ex. AY and AZ, which are copies of Khataunis, were produced, in an attempt to link the gifted property with the ancestors of Chuhru, but the Khasra numbers mentioned in these two Khataunis are different from the gifted property and these numbers are not linked or connected with the gifted property, even impliedly. So, substantial questions of law No.3 and 4 are also answered against the plaintiff- appellant. 13. In view of the aforesaid answers to substantial questions of law, on which the appeal was admitted, it is held that there is no merit in the appeal. The same is, therefore, dismissed. June 1, 2010(sd) ( Surjit Singh ), J