IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 396 of 1999 Reserved on: 3rd August, 2011 Date of Decision:12th August, 2011 Daleep Kumar & another Appellants Versus Smt. Kancha and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr. Shrawan Dogra, Advocate. For the respondents: Shri N.S.Chandel, Advocate, for respondents No.1(a) and 1(b) Sanjay Karol, J. Shri Chatro (plaintiff) (since deceased) allegedly executed three gift deeds dated 28.1.1993 (Ext.DW-4/A, Ext.DW-4/B and Ext.DW-4/C) in favour of Daleep Kumar (defendant No.1), and his wife Smt. Gian Dei (defendant No.2) in relation to his 1/3rd share in land situated in different Mohals of District Kullu, H.P. The gift deeds, according to Shri Chatro, were got executed by the defendants by exercising fraud and misrepresentation. Defendants agreed to maintain Chatro and his wife, who were childless, for life on the condition that suit property be willed to them. They got certain documents signed and registered from Whether the reporters of Local Papers are allowed to see the Judgment? 2 Chatro. However, after a period of two years, defendants stopped maintaining when they disclosed having got executed gift deeds in their favour, which were challenged by Chatro by filing a Civil Suit. 2. Defendants filed written statement admitting that they had agreed to maintain Chatro and his wife, but, however, took up the defence that Chatro had voluntarily, executed gift deeds in their favour. Plea of fraud and misrepresentation was specifically denied. 3. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the gift deeds dated 28.1.1993 by plaintiff in favour of defendants No.1 and 2 are the result of fraud and mis- representation, if so its effect? OPP 2. Whether the defendants are in possession of the suit land as alleged? OPD 3. Whether the plaintiff is estopped by his act and conduct? OPD. 4. Senior Sub Judge decreed the suit in terms of judgment and decree dated 12.1.1999 passed in Civil Suit No.48/95, titled as Chatro vs. Daleep Singh and others, by holding that Chatro was old, illiterate, rustic and a simpleton villager. He lived alone with his wife as they were issueless and had none to look after them. No doubt gift deeds (Ext.DW-4/A, Ext.DW-4/B and Ext.DW-4/C) were got executed and registered by the defendants, but, however, Chatro had neither any intention nor any knowledge about the contents thereof. 3 Thus gift deeds could not be said to have been executed in accordance with law. Further possession of the gifted land continued to be with Chatro all throughout. 5. Defendants assailed the decree before the District Judge, Chamba, who in terms of judgment and decree dated 21.7.1999 passed in Civil Appeal No.13 of 1999, dismissed the appeal. 6. Hence this is the defendants’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the concurrent findings of fact recorded by the Courts below, which stands admitted on the following substantial question of law:- “Whether the validity of a gift deed is to be tested on the same principles as in the case of a will?” 7. I have heard learned counsel for the parties. Courts below have concurrently held in favour of the plaintiffs. In this appeal, I am not required to go into the factual matrix, yet for the purpose of satisfying my conscious I have examined the record for ascertain the correctness of the findings recorded by the Courts below. 8. Plaintiff No.1 has examined himself as PW-1 and another witness Shri Kishori Ram (PW-2). On the other hand, defendants have examined the Registration Clerk from the Office of Sub Registrar, Chamba, Kumari Jyoti Seth (DW-1); Shri B.D.Sharma (DW-2) Naib Tehsildar cum Sub Registrar, Chamba; defendant No.1 4 himself, Daleep Kumar (DW-3), Shri Ujlesh Chand (DW-4), marginal witness to the gift deeds and Shri Pardeep Kumar (DW-5) scribe of gift deeds (Ext.DW-4/B and Ext.DW-4/C). 9. Appreciating the evidence led by the parties, Courts below have concurrently held that Chatro had no intention of gifting his land and executing the gift deeds in favour of the defendants. They have also held that defendants failed to continue to Chatro and his wife after a period of two years starting from the year 1993. 10. Record reveals certain undisputed facts; (i) Chatro was illiterate, rustic and lived alone in his village alongwith his wife; (ii) He owned immovable properties to the extent of 1/3rd share in different parts of District Kullu; (iii) Chatro had visited the office of Sub Registrar for the purposes of execution of certain documents and (iv) Chatro and his wife were maintained by the contesting defendants for about a period of two years. 11. Section 123 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) provides as under:- “123. Transfer how effected. – For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. 5 For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.” 12. Under Section 122 of the Act, Gift is defined as transfer of certain existing moveable or immovable property made “voluntarily” by the donor in favour of the donee. Acceptance of the gift during the life time of donee is necessary. In the instant case, transfer of immoveable property is alleged to have been made by a written instrument (Ext.DW-4/A, Ext.DW-4/B and Ext.DW-4/C). Section 3 of the Act provides that attestation in relation to an instrument would mean that the document is attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant. 13. Section 68 of the Indian Evidence Act, 1872, (hereinafter referred to as the Evidence Act) provides that a document, if required by law to be attested, 6 shall not be used as evidence until one attesting witness is examined for the purpose of proving its execution. This, however, would not be necessary if execution of the document is specifically not denied by the executant. 14. In fact, the question as framed is no longer res integra. It stands decided by this Court itself in Ballo vs. Paras Ram, AIR 1972 HP 33, as under:- “16. Learned counsel for the plaintiff- appellant has stated that the plea of fraud in the execution of the gift deed is given up in view of the findings of the two Courts below. This issue will, therefore, not be tried now. The only issue that will be tried now will be the issue whether the gift deed was executed as a result of undue influence as explained above. As already explained, the burden of proving the absence of undue influence will rest upon the defendant if it is established by the evidence in the case that the defendant was in a position to dominate his will and that the transaction was unconscionable. Each party can, of course, rely upon admissions made by its adversary which are better than other kinds of evidence. It follows that even if the plaintiff willingly executed the gift-deed, the deed must be set aside if it was shown to have been induced either by the actually proved or presumed exercise of undue influence upon the plaintiff. The exercise of undue influence could be presumed, until the presumption is rebutted by the proof of requirements found in Section 16 of the Contract Act for raising the presumption.” (Emphasis supplied) 7 15. The aforesaid ratio is squarely applicable to the instant facts as it stands unambiguously proved that Chatro was an illiterate and rustic villager. There is some dispute with regard to his age. At some place it is mentioned as 80 years, whereas at another place his age is mentioned to be 60 years. Be that it may be, the fact of the matter is that he was a simpleton and was not acquainted with or had knowledge of niceties of law and difference between the Will and the Gift. Defendants were duty bound to prove the fact that the gift deeds were executed “voluntarily” after clearly understanding the contents and consequences thereof. 16. In the instant case, execution of the gift deeds have been specifically denied and disputed by the executant. As such, keeping in view the fact that plaintiff No.1 was an old illiterate and rustic person, the burden to prove valid execution thereof rested upon the defendants. In view of the provisions of the Act and the Evidence Act as noticed hereinabove, the validity of the gift deeds is tested on the same principle as that of the Will. 17. The Division Bench of the Madras High Court in N.Ramaswamy Padayachi vs. C.Ramaswami Padayachi and others, AIR 1975 Mad. 88, has held that:- “3……. “The effect of Section 68 is not that if one attesting witness could prove that the testator had acknowledged his signature to him, it is not necessary that the 8 acknowledgement by the testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other’s presence, it is not necessary to examine both of them to prove that they had received acknowledgement from the testator. If the attestations to the testator’s signature were not made at the same time, it is necessary to prove that both the persons, who put down their attesting signatures on different occasions, had done so on the acknowledgement of the testator. The position is the same even in regard to gifts, in view of Section 123 of the Transfer of Property Act read with the definition of the word ‘attested’ in Section 3 of the Act. Accordingly, where a gift duly signed by the donor was attested by two witnesses not proved to have done the same in the presence of each other, the evidence of one of the attesting witnesses is not sufficient to prove the execution of the gift deed.” 18. In my considered view, PW-1 discharged the initial burden by stating that neither had he handed over the possession of the land in favour of the defendants nor was he informed of nature or contents of the documents. He admits to have visited the office of the Registrar but not for the purpose of execution of the gift deeds. 19. On the other hand, a conjoint reading of testimonies of defendants’ witnesses would reveal that defendants have not been able to dispel the doubt of 9 suspicion about misrepresentation in getting the documents signed. Admittedly, gift deed (Ext.DW-4/A) was scribed by one Shri Anand Sagar who has not been examined in Court. According to DW-5, documents were scribed by him on the asking of Chatro. The same was scribed by him inside the room where he used to sit and he scribed only two documents (Ext.DW-4/B and Ext.DW- 4/C). He states that Shri Anand Sagar, who used to sit in the compound scribed the third document. He does not state that he had seen him scribing the same. He also does not state that Chatro had asked Anand Sagar to scribe the same. According to this witness, Chatro signed the documents (Ext.DW-4/B and Ext.DW-4/C) in his presence, whereas according to the Marginal witness (DW-4) all documents were signed by him in the Court compound. DW-5 does not specifically state this fact. Significantly this witness does not state that he signed the same in the presence of DW-5. That apart, according to PW-5 the document was scribed in the presence of DW-4 which version stands materially contradicted by DW-4, according to whom, when he reached the Court compound, documents were already scribed. Further according to DW-4, he had signed the documents in the presence of DW-3 whereas according to DW-2, signatures of DW-4 on the documents at mark Ext.PW-2/A, Ext.PW-2/B and Ext.PW-2/C were not appended in his presence, but in fact same was done in the office of the Clerk registering the documents. Further 10 both DW-2 and DW-3 have deposed that the donees had also signed the documents, which fact stands falsified from the bare perusal of the gift deeds as there are no signatures of both the donees on the same. According to PW-3, Chatro had himself brought DW-4 to be the marginal witness, whereas according to DW-4 he was called not by Chatro but by Rawan, father of DW-3. Thus the defendants had a hand in preparation of the gift deeds. DW-3 has deposed that mutation of the land, in the revenue record was also carried out on the day of execution of the gift deeds which fact stands falsified by the revenue documents Ext.P-1 to Ext.P-6, which shows that mutation was carried on 5.2.1993 and 28.1.1993. Moreover, Chatro had not signed the documents but had put his thumb impression and the defendants’ witnesses could not even state as to whether the same was of left or right hand. No doubt, defendants have proved that mutation in the revenue record was carried out on the basis of affidavit signed by Chatro, but who got this affidavit executed and who placed the same before the revenue authorities has not been proved on record. 20. Noticeably DW-4 does not state that he had been told by Chatro that Raghubir had signed the document in his presence. The contradictions are material in nature and it cannot be said that defendants have been able to prove that gift deeds were voluntarily executed by Chatro in their favour even 11 with regard to attestation there is doubt. There is no dispute that Chatro and his wife were maintained by the defendants for at least two years, but then there is nothing on record to prove that Chatro had intended to gift the land, which is not small chunk, to the defendants. It is not the case of the parties that defendants were otherwise ordinarily residing with Chatro in his house. There is also nothing on record to show that prior to 1993 Chatro was being looked after by the defendants or that there was relationship of love and affection between them. Substantial questions of law are answered accordingly. 21. The findings returned by the Courts below, to my mind, are clearly borne out from the record. They cannot be said to be perverse. No travesty of justice resulting due to passing of the impugned judgment and decree could be pointed out. Hence, no ground for interference is made out in the present appeal, which is accordingly dismissed. However, there shall be no order as to costs. 12th August, 2011 (Sanjay Karol) (C) Judge.