RSA No. 3428 of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3428 of 2005 Date of Decision: January 06,2011 Hari Singh and others ...........Appellants Versus Gurbachan Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Vishal Garg, Advocate for the Appellants. None for the respondents ** Sabina, J. Plaintiffs had filed a suit for declaration that gift deed dated 10.10.1978 alleged to be executed in favour of the defendants was null and void. The suit filed by the plaintiffs was dismissed by the trial Court vide judgment and decree dated 21.5.1982. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by the Additional District Judge Amritsar vide judgment and decree dated 3.1.2005. Hence, the present appeal by the plaintiffs. The case of the parties, as noticed by the learned Additional District Judge in paras 4 to 6 of its judgment reads as under:- “4.A civil suit was filed by the plaintiffs Hari Singh and others for RSA No. 3428 of 2005 2 declaration that the gift deed dated 10.10.1978 executed regarding land measuring 87K-8M out of land measuring 139K-10M comprised in Khewat/Khatauni No. 23/44,45,46,47 bearing Khasra numbers 58(0-8), 59(0-8),9/6/1(2-25), 1/25min(6-0), 24/2 (4-16), 4/10(7-8), 11(7-8), 12(8-0), 5/23/2min(1-4), 8/8(4-9)min, 4/1(7-8), 2/11(7-12), 12/2(5-10), 18(2-16), 19(8-0), 20(7-8), 21(7- 8), 22/1(3-8), 8/3(8-0), 1/25min (2-0), 5/4(8-0), 5(8-0), 6(8-0), 15 (8-0), 23/2min (1-5), 8/8min(4-9) as entered in the jamabandi for the year 1975-76 situated in village Ramana Chak, Tehsil and District Amritsar and (B) land measuring 3K-14M as ½ share out of land measuring 7K-8M bearing Killa No. 10/26 as per jamabandi for the year 1975-76 comprised in khewat/khatauni No. 25/49 situated in village Ramana Chak, tehsil and district Amritsar is null and void, in-operative, based on fraud, undue influence and mis-representation and in the alternative, suit for possession of the land in case the court comes to the conclusion that the land is not in possession of the plaintiffs. 5. It was pleaded in the plaint that plaintiffs filed a suit for partition which was later on withdrawn with the permission to file a fresh suit. It was further pleaded in the plaint that plaintiffs No. 1 and 2 are major sons of Tehal Singh, whereas plaintiffs No.3 and 4 are minor sons of Tehal Singh, therefore, they have been impleaded through Shri Tehal Singh, who is their father and natural guardian. It was further averred that Inder Dass was the common ancestor of the parties, who died issueless leaving behind the suit land. Before his death, Inder Dass on 14.8.1978 RSA No. 3428 of 2005 3 executed a Will in favour of the plaintiffs and defendants no. 1 to 3 and according to the said Will one half share had gone to the defendants and the remaining one half share had gone to the plaintiffs. The land in question is partly in possession of the defendants and partly is being cultivated by the plaintiffs. The plaintiffs through their father are in possession of the land bearing Khasra numbers 1/25min(2-0), 5/4(8-0), 5(8-0), 6(8-0), 15(8-0), 5/23min(1-5), 8/8min(4-9) but khasra numbers 9/6/1(2-5), 59(0- 8), 59(0-8) are in cultivating possession of the defendants as per jamabandi for the year 1975-76 and khasra girdawri for the year 1976-77 to 1979-80. The defendants wrongly stated that Inder Dass had executed a paper gift deed dated 10.10.1978 in favour of defendants No. 1,2,4 and 5. It is only a paper transaction, therefore, it is null, and void transaction and in-operative and has been kept concealed from the plaintiffs and they did not assert the alleged gift in the mutation proceedings and the mutation was effected on the basis of Will dated 14.8.1978 executed by said Inder Dass. Inder Dss died on 16.11.1978 and the Will in favour of plaintiffs became operative and in mutation No. 639, defendants admitted the execution, factum and validity of the Will and the mutation was ultimately accepted in favour of the parties on the basis of the Will. The defendants did not intend or asserted their rights and title in the land on the basis of gift deed. The alleged gift deed is vitiated by undue fraud and mis- representation. Inder Dass was a feeble and weak minded man and was an old man unable to move about and was in a sub- RSA No. 3428 of 2005 4 serviant position. The defendants are strong persons in the village and were in a dominant position. By exercising unde influence, they got the alleged gift deed executed from Inder Dass, deceased. It is further vitiated by fraud. Inder Dass was a simpleton and aged man of 80 years. Relations between Inder Dass and the plaintiffs were very cordial and the plaintiffs had been serving him throughout life. The alleged gift deed is un-natural and the defendants never served the deceased. The deceased had been living with the plaintiffs. Secrecy is the badge of fraud. Even gift deed was not acted upon and it was relinquished by the defendants. 6. The suit was contested by the defendants, who filed written statement taking preliminary objections that the suit is not maintainable in the present form; the prayer is vague and it has not been stated as to which land, the possession is being sought from the replying defendants, as such, the suit merits dismissal. In fact the gift deed was executed by Inder Dass regarding his 3/10 share in the land measuring 139K-10M and similarly for ¼ share in the land measuring 7K-8M the suit has not been properly valued for the purposes of court fee and jurisdiction; the suit is bad for non-joinder of necessary parties and that the plaintiffs have no locus standi to challenge the execution of the gift deed. On merits, it has been denied for want of knowledge that Tehal Singh is attorney of plaintiffs No.1 and 2. It has been denied that Inder Dass was owner of land measuring 83K-14M at the time of his death because he had executed the gift deed in favour of RSA No. 3428 of 2005 5 Malkiat Singh and Surjit Singh sons of Milkha Singh to the extent of 1/3rd share and Gurbachan Singh and Ajaib Singh sons of Charan Singh to the extent of 2/3rd share of ½ share of his 3/5 share of khewat khatauni No. 23/44 to 47 and ½ share out of his ½ share of khewat khatauni numbers 25/49 and after the execution of the Will, the testator will remain as owner of the whole property till his death and can deal with the same in any manner he liked upto his death. There was no legal bar upon him to execute the gift deed. The plaintiffs are not in a possession of the land as stated in the plaint. The gift deed executed by Inder Dass in favour of defendants is legal one and the mutation has already been sanctioned in their favour. The gift deed dated 10.10.1978 is a valid document and the same is binding upon the plaintiffs and the plaintiffs have no right to challenge the same. So far as the Will is concerned, it was to take place after the death of testator and mutation had to be sanctioned regarding his remaining land belonging to the testator on his death and the other land which he had gifted away or sold away, it has no concern in the mutation proceedings. The possession of the gifted land was delivered to the donees and accordingly, they are in possession of the same. Therefore, gift deed executed in favour of defendants No. 1 and 2 and children of defendant no.3 is a valid and legal document. Inder Dass had executed a gift deed prior to his death on 10.10.1978 and before his death, he was competent to execute the gift deed. It has been denied that the gift deed was got executed under undue influence, fraud. In fact, it is executed by RSA No. 3428 of 2005 6 Inder Dass in his sound disposing mind and free consent. It has been denied that it was obtained by way of undue influence. He was enjoying good health at that time and had appeared before the Sub Registrar for admitting the contents of the gift deed. It has been denied that plaintiffs had been serving Inder Dass. The gift deed was executed by Inder Dass in favour of defendants out of love and affection. This fact has also come to the knowledge of the plaintiffs but they did not raise any objection at the time of sanctioning of the mutation and now they are barred to raise this objection, therefore, there is no merit in the suit of the plaintiffs and it be dismissed.” On the pleadings of the parties, the following issues were framed :- “1. Whether a valid and legal gift deed dated 10.10.1978 was executed by Inder Dass in favour of defendants No. 1, 2,4 and 5?OPD 1-A) In case issue No.1 is proved, whether the defendants are estopped by their acts, conduct and acquiescence and admission from asserting their rights under the alleged gift deed dated 10.10.1978?OPP 1-B) Whether the defendants have forsaken and abandoned their rights, if any, under the disputed gift deed dated 10.10.1978 as alleged?OPP 2. Relief.” After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. RSA No. 3428 of 2005 7 The case of the plaintiffs was that the gift deed was a result of undue influence and fraud. The gift deed in question had been executed by Inder Dass in favour of defendants. Bhagat Singh had two sons, namely, Sahib Singh and Inder Dass. Inder Dass died issueless. Sahib Singh had three sons, namely, Charan Singh, Tehal Singh and Karam Singh. Plaintiffs are the sons of Tehal Singh,whereas, defendants No. 1 to 3 are the sons of Charan Singh and defendants No. 4 and 5 are the sons of defendant No.3. Inder Dass was owner of 83 kanals 14 marlas of land. He executed a Will in favour of the plaintiffs as well as the defendants No. 1 to 3 to the extent of half share on 14.8.1978. Inder Dass died on 16.11.1978 and, thereafter, the mutation (Exhibit D4) was sanctioned in favour of the plaintiffs and defendants no. 1 to 3 on the basis of Will. The gift deed in question is dated 10.10.1978. In order to prove the gift deed, defendants examined DW1 Sham Murti, Registration Clerk, DW2 Mulkha Singh, DW3 Niranjan Singh, Deed Writer, DW4 Charan Singh, Lambardar and DW5 Mohan Lal Sharma retired Naib Tehsildar-cum-Sub Registrar. Mutation No.638 (Exhibit D3) was sanctioned on the basis of gift deed. Merely because, no mention is made in the Will qua the execution of the gift deed is no ground to hold that the gift deed is a fabricated document. The gift deed is a duly registered document. The gift deed in question has been duly proved by the witnesses examined by the defendants. DW5 Madan Lal Sharma deposed that on 10.10.1978, the gift deed executed by Inder Dass was presented before him for registration. He had read over the contents of the gift deed to the parties as well as to the witnesses. Thereafter, it was thumb marked in his presence by the RSA No. 3428 of 2005 8 executant and it was endorsed by him. Inder Dass was in good health and was of sound mind when the gift deed was presented before him. Inder Dass was identified by Charan Singh, Lambardar who was personally known to him. Charan Singh Lambardar, DW4 also proved the due execution of the gift deed. He deposed that the gift deed had been executed by Inder Dass in favour of Malkiat Singh and others. It was read over to Inder Dass after it was scribed by the deed writer and he had thumb marked the same after admitting the contents to be correct. He had attested the same along with Mohan Singh and thereafter, the gift deed was presented for registration. The statement of DW4 Charan Singh was duly corroborated by DW3, Deed Writer and DW2 Mulkha Singh. DW2 has further deposed that they had accepted the gift deed. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiffs as the defendants have been successful in proving the due execution of the gift deed in their favour. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge January 06, 2010 arya