201 RSA N02855 of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA Nol855 of 1998 608M Dateofdecision 2 82Oll 1 Chiranji Lal andothers 0 Appellants 0 I versus I RamNath andothers Z CORAM HONBLE MR JUSTICE KCPURI I c8 00 Present Mr Ashish AggarwalAdvocate and vm Mr Kartik GuptaAdvocate and Z Mr Kulwant SinghAdvocate for the appellant Mr BSBedi Advocate for the 1 KCPURI J Challengein this appealare the judgmentand decree dated 193 1998 passedby Shri SPingh leamed Additional District Judge Kaithal vide which theappealpreferred bythe against and decreedated 18l1996 passedbyShri Jai SinghJangra Civil JudgeSenior Division9Kaithal was dismissed KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 1 202 RSA No2855 of 1998 2 Theplaintiffhasfiled the suit for declarationand on thegroundthat she was owner in of 32 acre of agriculture land out of which she had transferred18 acres of land in favour of Dharam Pal etc in some familysettlementand thereaftershe also suffered a decreeon the basis of allegedfamilysettlementfor the said land in their favouron 2131989 Apartfrom this shehas also executeda will L 0 in favour ofDharam Pal etc her entire estate The plaintiffiisan C illiterate and Pardanashinladyof 80 yearsand now she has becomeblind I 4 Initiallyplaintiffused to reside in villageSirsal all alone in her own house I andshe was havingfull faith in defendantNol Rati Ram and Kishan and Z his sons who used to cultivate her landedpropeny includingSUit land9but 2 later on sheobserved from their acts and conduct thattheyare interestedto grabher entire estate includingsuit land and she was also in the I r apprehension for havingdangerous to her life then she sent a message to oo Dharam Pal her near relative of villageSandhir with whom she shifted to V Z villageSandhirand startedto residetherewith them6Dharam Lal Baru Ram Il etc9who used to serve her But in year 1989defendantsfiled a suit against theplaintiffand Dharam Pal etc claimingthattheyare owner in ofthe land 53 kanals9 marlaswhich was got in familysettlement and strangely theyalso allegedthattheyhave become owner in of the land byway of adverse thoughshe had never transferred anypieceof land in favour of the defendants SimilarlyRam Kumar etc havealso filed one suit for declarationregarding land measuring 106Kanals 4 marlasclaimingthemselvesto be owner in possession of the same on the basis of familysettlementand at the time of that litigationshe received a KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 203 RSA Nol855 of 1998 3 letter dated 20A989 from the defendantsthatthey iefendants have secureda giftdeed in their favour in the land measuring 112 kanals19 marlas comprising khewat No 2871303 RectangleNo 37 Khasra No 50 No 38 Khasra Nol 612 15 17 20 2411Rect No 43 Khasra No 3 Rect No 66 Khasra No 1237A910 situatedin 1 villageSirsal and becomeownerin of the said land thoughshe tr 0 had not executedany giftdeed dated61 11969 in favour ofthe defendants and theyhave procuredthe same by fraud and as I defendantswere cultivating her land as tenantsand shebeingilliteraterustic I villagewoman had full faith in them who broughther at Kaithal on the Z pretextof gettingthe land on pattafrom theplaintiffas theywantedto have some writingproofin their favour regarding cultivation of the land of plaintiffstenants but instead of executing any leasedeed they I a3 got executed gift deed in their favour by puuingher thumb 00 thoughshe never executedsuch gi deed in their favour 7 Z 2 It has been furtheraverred that defendantshave keptthe gift ll deed in secret and theyused to pay batai of the produceof the land to the plaintiffWhile defendantsare not relatedto her in any manner andtheyare strangerto her in any manner strangerto the familyof the plaintiffor her husband and there was no love and affection between plaintiffand defendantsand onlyrelation betweenplaintiffand defendantswas as that of landlord and tenants therefore thereis no questionofgivingthe suit land in favour of the defendantsby executing anygiftdeed in their favour Thus giltdeedin question is illegalvoid documentand same is not bindingupon her and on the basisofthe same defendantscan not be consideredas owner 1 KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 204 0 4RSA No2855 of 1998 4 1 of the suit land Therefore plaintiffhas for passingdecree of ofland 112kanal 19marlasdescribedin paraNo8of theplaintand gifl deed dated61 11969 is forgedand fabricateddocument and same has been obtainedbyplayingfraud upon the plaintiffand it has no legalforce and it is liable to be set aside and at the same time she has 1 also for passingdecree of after settingaside the giR tr 0 deedin her favour against the defendant Hence the suit Defendantshaveappeared and contestedthe case byOlingof D wntten statement andtheir stand is that suit of the plaintiffis time barred and she is estopped from 8lingthe presentsuit by her own act and conduct Z and it has also not been properlyvalued for the purpose of court fee and and suit has been Oled at the instanceof Dharam Pal etc9 as t I plaintiffhas no source of income and theyare on her behalf to 45 harassthe defendants So Dharam Pal etc are to be plaintiffsofthe suit 00 r therefore it is not maintainableOn merits defendantshave denied the 7 Z averments of the plaintiffsby allegingwrong and denied and theyhave 4u1d 61 claimedthemselvesto be nephewofplaintiffwhohas been livingwith them 1 the life and defendantshave been in cultivating of the suit land as owner for the last more than 25 years and theyhave been servingfood etc to the plaintiffand she has not letl the villagebyher own rathershe has been made to leave thevilIagebyDharam Pal etc However it is also their standthatplaintiffhas been in theknowledgeofthe gi deed from the very beginning since 1969 Thus her suit has becometime barred and she hasno rightto challenge the gifldeed in question and it is liable to be dismissed In addition to the aforesaidpleastheyhave nher alleged Ef9 KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 205 1 RSA No2855 of 1998 5 thatifthe giftdeed is provedto be audulentthen defendantshave become owner in possesslollof the suit Iand by way of adverse as they are in ofthe suit land for the last more than 12years In this way theyhavecontrovertedthe standsofthe plaintiffand for dismissal ofthe suit 1 In plaintiffreiteratedher standtaken in the plaint 14 0 andcontrovertedthe standofdefendantstakenin the written statement 0 On the controversyof the partiesfollowinglSsues were I settled C 1 Whethertheallegedgill deeddated6 1169 is forgedand fabricated document and whether the same has been obtainedby playingfraud on the plaintiffand whether Z the same is void and liable to be cancelled20PP 2 If issue No l is provedwhetherplaintiffiis owner of the 0 land 112 Kanals 19 Marlas as detailed in paraNo8 ofthe plaint20PP c25 3 Whether theplaintiffisentitled for ofthe suit land20PP 3 4 Whether the suit is time barred20PD Z 5 Whether suit is not maintainable in the present fl form20PD 6 Whether the plaintiffis estoppedby her own act and conduct2OPD 7 Whether the suit is under value for the purposeof COUrt fee and 8 Whether the suit is collusive and has been flled at the instanceofDharam Pal etc ifso its effect20PD 9 Whether the defendants are entitled for special costs20PD 10 Relief KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 206 RSA N02855 of 1998 6 In supportof her case plaintiffherself appeared as PW1 and alsotendered some relevant documentssuch as copy of fard copy of the plaintof the suit titled Rati Ram Vs Nanhi Devi certified copies oforders in the same suit ExPl P2 ordersofthe case Ram Kumar VsNanhiExP3P4 1 On the other side defendantshave examinedAtma Ram clerk 0 asDW1 MangeRam as DV2 R1CKalra Advocate as DV3 Ram Jawaya as DW4 MeghNath as DWe5 RNNashissta as DW Theyhave also Z tenderedsome relevant documents I The trial Court after hearing the leamed counsel for the panies Z and appraisalof the evidence decreed the SUit of the plaintiffsvide judgmentand decreedated 181 11996 Feelingdissatisfied with the aforesaid judgmentand decree I 08 dated 181 11996 the prefenedappealbefore the r First Appellate Court and the said learnedCourt dismissed the appealvide 3 Z judgmentand decreedated 1951998 Still feelingdissatisfied with the aforesaid and decreesdated 18111996 and dated 1951998 the defendantappellant has preferred the presentsecondappeal I have heard learned counsel for the partiesand have gone through therecordsofthe case with their ableassistance Duringthe pendency ofthe appealon 1732010thelearned counselfor theappellants has submittedthatfollowingsubstantialquestions oflaw havearisenin the presentappeal 1e Whether the findingrecorded by courts below by KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 207 No2855 of 1998 7 or the oral c documentary evidenceon record are illegalandperverse2 2 Whetherthe approach of the courts below in recording findings of fraud and without being anyspeciflcpleading or evidence can be sustainablein law2 3 Whetherin the factsand circumstancesofthe case the e suit of the is not barredby r limitation 2 0 4 Whether in view ofthe fact thattheprevioussuit inter 0 parties filed bythe havingbeendismissed I the is entitledto the relief in the instantsuit 2 I The learnedcounsel for the has submittedthatboth Z the Courts below have misread and the oral as well as evidence on record and as such and decreesof both the Courts below are perverse The case of originalplaintiffSmt Nanhi I 08 Devi is that fraud has been committedupon her while executingthe gift oo deedin favour of No of Oaud have been given The 7 Z SUit of the plaintiffis hopelessly time barred The gifl deed is dated 611969 and the suit was filed on 17121989 ie after lapseof 20 years The standtakenbytheplaintiffSmt Nanhi Devi that propenywas on lease with is wrong on the faceof it I t is further submittedthat DW3 scribe of thegiftdeed DW4 attestingwitness of the gift deed and DW6 HandwritingExperthave provedthe factumofgiftdeedexecutedby Smt Nanhi Devi The arethenephews ofhusband ofSmt Nanhi Devi Lastly it is submittedthat the have become owner of the suit propertyby way of adverse possession as their possession lsover the periodof 20 yearsin the hostile KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 208 C2 No855 of 1998 8 mannerto the of others It is 61rthersubmittedthat Smt Nanhi Devi in thepreviouslitigationhas admittedthe execution of giftdeed So boththe Courts below have committed error in decreeing the suit of the plaintiffThe learned counsel for the has relied upon the followingauthorities 1 1 NagiadasRamdas vse Dalpat Ram Ichharam etce tr 1974Current Law Journal 57 9 0 2e DassRam etc vse Charaniit Lal etce1974 Current 0 Law Journal 68 I 3e Misri Lal and another vs BhagwatiPrasad AIR 1955 Allahabad 573 I 9 4e Union ofIndia vs Mls Chaturbhai 1976 Current Law Z Journal lCivil l 166 9 5 5e Savithrammavs HeGurappaReddv and others AIR Q4 1996Karnataka 99 1 I 6e Haira Bai and others vse Jadavbai AIR 1986 Madhva r25 Pradesh 106 a 7e Shrimati and others vse Sudhakar RBhatkar and W3 others AIR 1998 Bombav 122 Z 8 Davinder Singh vse MteLachhmi Devi AIR 1930 L1 Lahore 985 9 Bellachi DeadlBv LRS VSe Pakeeran 2009112 SupremeCourt Cases 95 and 10 Chamanlal Deadl Through LRs Versus SmtlZam Katori and another 4197313 SupremeCourt Cases 384 In replyto the above noted submissions learned counsel for the respondents has supportedthe and decrees of the Couns below Itis submittedthatthe disputein the presentcase 1S regarding the KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 209 Nol855 of 1998 9 validity dated611969 in favour ofappellants There is concurrent findingof fact recordedbyboth theCourts below and that the said giRdeed is a resultof fraud committed on an old lady So it is submittedthat no interferencecan be made in the regularsecond appealand the pleaof adverse is not availableto the as theyclaimed to be in 1 ofthe suit propertyon thebasisofgiftdeed There is no relation 0 0 of the appellant with Smt Nanhi Devi Theywere simplycultivating the 0 land as tenant under Smt Nanhi Dev and the suit has been rightlydecreed I by both the Courts below Learned counsel for the has also I relied upon thefollowingauthorities Z 1 Chalti Devi and others vse Raiinder Kumar and another 2004111LJRe 235 2 Ll1 2 Mste Kharbuia Kuer vs Jangbahadur Rai and others AIR 1963SupremeCourt 1203 c25 3 Sri Kishore Rav Thakur Biie vse SmteBasanti Kumar 00 Das and others AIR 1994Orissa 113 9 m 4 Mst Sethani vse Bhana AIR 1993 SupremeCourt Z 956 vee 3 5 Kuma Dei vs MdeAbdul LatifAIR 1994 Orissa 111 5 6 Badat and Coe VSe East India trading Co AIR 1964Suoreme court 538 7 Kondiba Dagadu Kadam VSe Savitribai Sopan Guiar and others 199913 SupremeCourt Cases 722 8e Hero Vinoth 1Minorl VS Seshammal l200615 Supreme Court Cases 545 9 9 RamanuiaNaidu vs VeKanniahnaidu and another 1199613SupremeCourt Cases 392 1 10 Secretarv Taliparamba Education Societv vs Moothedath Mallisseri Illath MN and others KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 210 Nol855 of 1998 10 419971 4 SupremeCourt Cases 484 9 11 PakeerappaRai VS SeethammaHengst dead bv Lrs and others 200119 SupremeCourt Cases 521 120 Harbans Singh and others VSe Mohinder Singhand others 2003 PeLeJe330 130 Punam Chand vs Sushil Kumar and others 200311 ReCeRelCivil16830 11 0 14 Kishan Chand vs SatvaDevi and another 2007141 0 RCR ICivill 288 I I have considered the submissionsmade by both the leamed D I counselfor thepartiesand havegonethrough the recordsofthe case The narrow controversyltl the presentlis 1S regarding the Z execution of gift deed dated6111969 in favour of 2 0 Both the Courts below after appraisal and of the evidencegiven I a concurrentflndingof fact thatgiftdeeddated61969 is result of fraud a oo andthe same cannot be acceptedThe pleaof adverse raisedby aw boththe defendantsbefore both the Courts below did not flnd favour So Z thatbeinga findingoffact cannot be interferedin theregularsecondappeal Ll So far as the admission lIl the earlier litigationis concemed that hasbeendulydealt in byboth the Courts below The appellants are not related to Smt Nanhi Devi in any manner The stand taken by the that theyare related to Smt Nanhi Devi beingnephews of below The pleaof adverse hasrightlybeen negativedbyboth the Courts below Both the Courts below have rightlyheld that beingin a fiduciaryrelation has misusedtheirpositionand got thegiRdeed KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 211 Nol855 of 1998 11 bythe result of fraud The gifldeed cannot be said to be provedsimplyby callingfor the handwriting expert testator or scribe The were ln a positionand as such boththe Courts below have rightly held that giftdeed was never executedby Smt Nanhi Devi in favour ofthe appellants 1 0 So far as authorityNaPiadas Ramdas case 1supral 1S 0 concemedin thatcase ithas been held thatadmission hasthe 0 I value but in the presentcase the have failed to prove that in the 0 earlier written statement Smt Nanhi Devi hasvoluntarily admittedthe gi I deed It was ajointwritten statement preferredby Smt Nanhi Devi andthe Z present So it cannot be said to be a voluntary act at the handsof C Smt Nanhi Devi I Authorityin Dass Ram etces case SUDral laysdown that Z endorsementof Sub Registrar is relevantbut each case has to be decided on r the facts of that case Appellants were able to put undue influence upon 7 Z Smt Nanhi Devi is relevant and as such the said authorityis also CL on the factsofthe presentcase Authority Misri Lal and anothers case 1supral is also on the same ground In authority Union of India vs Mls Chaturbhais ease 1suoral Honble ApexCourt has held that pleaof fraud has to be proved like criminal and must be establishedbeyonddoubt It has been further laid down in the said authoritythat suspicion alone cannot take place the place of proof There ls no disputewith the said propositionof law laid down by the Honble Apex Court but in the KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 212 No2855 of 1998 12 presentcase there is concurrent finding of fact that gift deed is result of fraud Similarview was taken in authorities Savithrammas case 4suDral andauthorityHajraBai and others case 1orale In Shrimati and others case lsupral the 1 C defendants were ableto prove that the illiterate widow has been managing 0 herproperty for two decadesand in those circumstancesit t40 I was held that giftdeeds dulyprovedHowever in the presentcasethe C revenue record even shows that were ltl of the I of Smt Nanhi Devi and as such she was unableto makerational Z judgmen In authority Davinder Sinehs case supral Pardanashinlady I inthetruesense isthatladywho 1S livingin seclusion and has no C Z communication with an male strangersexcept from behind a Goreen CO However that authoritywill not advance the case of appellant in any 7 Althoughthe Courts below had taken her as a lady Z manner but the fact remains that she has not executed any gift deed in favour of voluntarilySo thatauthority is not to the In authority Bellachi 1DeadlBy LRS case tsupral Honble ApexCourt has held that the HighCourt can interferein a regularsecond appeal where the Ondingof fact on the question of fraud undue inOuence wasvitiatedbyany illegalityomission or error or defect However the said authority is as 111that case it was held by both the courts below that sale deed was validlyexecuted by a ladyili favour of the KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 213 0 Nol855 of 1998 13 InauthorityChamanlal Deadl Throuh LRs case lpral the HonbleApex Court has held that an old and illiterate woman CaIl intelligently execute a Will There is no disputeto that of law The questionis whether the gift deed has been e voluntarily executedor ts a resultof fraud The concurrent findingof fact 0 0 recordedby both the courts below that theallegedgiftdeed is the result of fraud is not vitiated in any manner I D In authorityHarbans Sineh and others case supral relied I upon bythe learned counsel for the this Court has held that Z findingof fact even if another view is posslbleon of evidenceis not a ground to interferein the secondappeal as it does not raise t to any substantialquestion I r In authority Chalti Devi and others case 1supralit has been oo held by this Court that when a person 1S ln a fiduciaryrelationshipwith m Z anotherand the latter is in a positionof active confidence the burden of Ll provingthe absenceof fraud or undue inOuenceis upon thepersonin thedominating position The Honble ApexCourt in authorityMst Kharbuia Kuers case IsuDral relied upon by the learned counsel for the respondents lays down the law that in case of ladyspecialprotection has been givenin view of social condition It has been held that both the Courts below have rightlyplacethe burden of proof upon the defendantsand it was held thatHighCourt hasfallingln error lll settingaside the concurrent Snding KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 214 l No855 of 1998 14 r 1 In authority Kondoa Daeadu Kadams case supral it has been held that concurrent findingof fact cannot be interferredby the High Court in Vlew of Section 100 CPC unless the High Court comes to the conclusion that conclusion drawn by the Courts below are contraryto provisionsof law or contraryto law as pronouncedby Honble 1 theApexCourt or basedupon inadmissibleevidenceor no evidence 0 0 In view ofthe abovediscussion theappealis without any merit andthe same standsdismissed r C A copy of this judgment be sent to the trial Court for strict I compliance 4 Z 6 2 JUDGE 0 2011 i 5 sv I 1 C8 oo 4 7 Z KUMAR SURESH SHAM LAL 2012.05.31 10: 08 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document