IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No._211 of 1999. Judgment reserved on: 16.7.2008 Date of decision: 22.7.2008 Hem Raj …….Appellant Vs. Subash Chand and another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1Yes For the Appellant : Mr. N.K. Thakur,Advocate For the Respondents : Mr. Sanjeev Kuthiala, Advocate. Kuldip Singh, Judge. The plaintiff has filed this appeal against judgment, decree dated 6.3.1999, passed by learned Addl. District Judge (1) Una in Civil Appeal No.26/92, 204/94, setting aside judgment, decree dated 30.12.1991 passed by learned Sub Judge Ist Class, Court No.1, Amb in Civil Suit No.950/1984 and dismissing the suit of the appellant. 2. The facts in brief as per pleaded case in the plaint are that appellant filed suit for declaration that the suit land as per share of the appellant is owned and possessed by the appellant. The Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… appellant wanted to sell the suit land to respondents for a consideration of Rs.15,000/- and the money was required by the appellant for the treatment of his sons, therefore with a view to sell and execute the sale deed he along with respondents came to Amb, for execution and registration of the sale deed, but respondents No.1 and 2 got executed gift deed from him and agreed to pay sale consideration of Rs.15,000/- out side Tehsil. The gift deed was executed to save the registration charges. The respondents did not pay Rs.15,000/- to the appellant as agreed, rather they took the stand that appellant was not entitled to any money in as much as he had executed gift deed of the suit land. On this appellant came to know that he was defrauded by the respondents, he filed an application on 22.9.1983 before Sub Divisional Magistrate, Amb for cancellation of gift deed dated 19.9.1983. The application was returned to the appellant and he was asked to file a suit in a competent Court. In these circumstances, the appellant filed the suit that the gift deed dated 19.9.1983 is wrong, sham, void and not binding on the appellant and the same was got executed from him by fraud and mis- representation. It has also been submitted that in case the respondents No.1,2 succeeded in taking forcible possession of the suit land in that case a decree for possession was also prayed . 3. The suit was contested by respondents by filing written statement. The respondents took objections of valuation, maintainability and verification. On merits, the respondents pleaded that the suit land is not owned and possessed by the appellant and …3… the same is owned and possessed by the respondents. They pleaded that the sons of the appellant are deaf and dumb by birth. The respondents looked after the appellant and his sons, the appellant on account of love and affection and recognition of services rendered by the respondents voluntarily executed the gift deed in favour of the respondents on 19.9.1983, the possession of the suit land was also handed over to the respondents on that very day. The respondents are owners in possession of the suit land. The appellant is real uncle of respondents No.1 & 2. The suit has been filed at the instance of Oma Wati daughter of the appellant. The respondents denied the claim of the appellant. The appellant filed replication and repeated his stand which he had pleaded in the plaint. 4. The learned Sub Judge on 30.12.1991 decreed the suit and declared that the gift deed dated 19.9.1983 is void, a decree for possession of the suit land was also passed in favour of the appellant. The decree dated 30.12.1991 was assailed in appeal and the learned lower appellate Court while setting aside the judgment, decree dated 30.12.1991, dismissed the suit of the appellant, hence this second appeal by plaintiff which has been admitted on following substantial questions of law :- 1. Whether in the wake of the admitted facts of the case the alleged gift has been got executed by fraud and deceitful means of the respondents ? …4… 2. Whether the impugned judgment is vitiated for the reasons of mis-reading and mis-appreciating the oral evidence? 5. I have heard Mr. N.K. Thakur , learned counsel for the appellant and Mr. Sanjeev Kuthiala, learned counsel for the respondents and gone through the record. It has been submitted on behalf of the appellant that gift deed dated 19.9.1983 was got executed by respondents from appellant by playing fraud and mis- representation. It has been submitted that appellant is a rustic villager. The respondents took advantage of the ignorance of the appellant and persuaded him to execute gift deed instead of sale deed on the grounds that sale deed would invite extra expenses and would also be vulnerable to pre-emption law which was in force at that time. The appellant wanted to sell the suit land to respondents for Rs. 15,000/- which amount was needed by the appellant for treatment of his sons. The respondents agreed to pay sale consideration of Rs.15,000/- to the appellant after execution and registration of the gift deed, but later on respondents backed out and refused to pay Rs.15,000/- , to appellant on the grounds that since gift deed had been executed by the appellant in their favour, therefore, the respondents are not liable to pay any amount to the appellant, they refused to pay Rs.15,000/- as agreed. It has been submitted on behalf of the appellant that at that time the appellant came to know the fraud played by respondents with appellant for procuring the gift deed of the suit land in their favour. The learned counsel for the …5… appellant has submitted that fraud played by respondents with the appellant for execution of the gift deed has been proved on record and therefore, the learned trial Court was fully justified in decreeing the suit of the appellant. The learned counsel for the respondents has submitted that concocted story has been put forward by the appellant in order to wriggle out of gift deed which appellant had voluntarily executed and registered in favour of respondents in view of past services rendered by respondents to appellant and his sons. The suit has been filed at the instance of Oma Wati daughter of appellant. Learned counsel for the respondents has supported the impugned judgment, decree. Substantial questions of Law No.1 and 2 6. The substantial questions of law 1 and 2 are interconnected, therefore, both of them are being disposed of collectively. The case of the appellant is that he wanted to execute and register the sale deed of the suit property in favour of the respondents for a sale consideration of Rs.15,000/-. The said amount was required by the appellant for treatment of his disabled sons. It is also the case of the appellant that respondents came forward with the plea that execution and registration of the sale deed would be more expensive and therefore, they persuaded him to execute and register the gift deed Ex.PW-1/B. The respondents agreed to pay Rs.15,000/- sale consideration of the suit land to appellant after execution and registration of the sale deed. The respondents refused to pay sale consideration Rs.15,000/- of the suit …6… land to appellant after execution and registration of the deed and at that time the appellant came to know the fraud played by respondents with appellant, the respondents got the gift deed executed by mis- representation. In these circumstances the appellant filed suit for declaring the gift deed void. From the stand taken by the appellant the preparation of deed Ex.PW-1/B by him in favour of respondents has been established. DW-2 Rattan Singh attesting witness and DW-3 Naresh Kumar scribe have proved execution of gift Ex.PW-1/B. 7. The next question is whether respondents by playing fraud and mis-representing facts procured gift deed of the suit land in their favour. It has come on record that earlier appellant on 15.7.1983 had executed will Ex.DW-3/A regarding his entire moveable and immovable assets in favour of respondents and others who are none else but his nephews. In the will Ex.DW-3/A the appellant has categorically stated that respondents and other nephews of the appellant looked after the appellant and his disabled sons and there is none else to look after him. He executed will Ex.DW-3/A in favour of respondents and their brothers out of natural love and affection and in view of services rendered by respondents and their brothers to appellant and his sons. There is not a whisper in the plaint about will Ex.DW-3/A nor in his statement appellant has said anything as to why he had executed said will in favour of respondents. 8. The execution of will Ex.DW-3/A in favour of respondents and their brothers by appellant does indicate that …7… appellant had very good relations with the respondents who were looking after appellant and his sons. The execution of Ex.PW-1/B has been proved, but whether such execution is tainted with fraud and mis-representation. DW-4 Santosh Singh the then Tehsildar was examined by respondents. DW-4 has stated that gift deed Ex.PW-1/B bears endorsement Ex.PW-1/A and his signature Ex.P-2 and was signed in his presence, it was signed by witnesses, Nambardar Rattan Singh, Hem Raj, Rajinder Singh and Kashmir Singh. The gift deed was read over to appellant who accepted it to be correct. It is thus, clear that at the time of registration of gift Ex.PW-1/B the same was read over to the donor who accepted it to be correct. The presumption is attached to the endorsement of a registered document under Section 60 of the Indian Registration Act, 1908. 9. The appellant has taken the plea that the gift deed was executed in order to save the stamps and registration charges even though behind the curtain gift deed was nothing but sale deed of the suit land and respondents agreed to pay Rs.15,000/- sale consideration of the suit land to appellant after the execution and registration of the gift deed. The plea taken by the appellant for registration of the gift deed instead of sale deed is illegal and the Court will not come to the rescue of such person who has based his plea which is illegal and against public policy. The case of the appellant is that respondents agreed to pay Rs.15,000/- sale consideration of the suit land to appellant after the execution of the …8… gift deed is otherwise not believable. The appellant before executing and registering gift deed Ex.PW-1/B could very well ask the respondents to pay him Rs.15,000/- before he executed and registered the gift deed Ex.PW-1/B. There is substance in the defence that the suit was filed by appellant at the instance of Oma Wati daughter of the appellant after the execution, registration of the gift deed. Oma Wati being the daughter of donor is a natural successor to the estate of appellant. The present appeal has also been filed by appellant through Oma Wati, the daughter of the appellant. It has been established on record that gift of the suit land was voluntarily executed by appellant in favour of respondents which was accepted by respondents. The appellant has not filed the suit for revocation of the gift but for declaring gift to be void as the same was obtained by respondents by fraud and misrepresentation. 10. The learned counsel for the appellant has referred Subhas Chandra Das Mushib vs. Ganga Prasad Das Mushib and others, AIR 1967 SC 878 and Afsar Shaikh and another vs. Soleman Bibi and others, AIR 1976 SC 163. These judgments have been relied by learned counsel for the appellant in support of his submission that the gift in question is tainted by undue influence of the respondents. In Subhas Chandra Das, supra after noticing Section 16(1) of the Indian Contract Act the Hon’ble Supreme Court has held that the court trying a case of undue influence must consider two things to start with,, namely (1) are the relations between the donor and the donee such that the donee is in a position to dominate …9… the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor. It has further been held that merely because the parties were nearly related to each other no presumption of undue influence can arise. In Afsar Shaikh supra, the Hon’ble Supreme Court after noticing Subhas Chandra supra has held that it is not sufficient for a person seeking the relief to show that the relations of the parties have been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. More than mere influence must be proved so as to render influence in the language of the law “undue”. 11. In the present case, it can not be said that undue influence was exerted by the respondents for obtaining the gift deed. The plaint, if read as a whole would show that appellant had executed and registered the gift deed voluntarily and the respondents were to pay Rs.15,000/- to the appellant after the execution and registration of the gift deed. In the facts and circumstances of the case, it can not be said that payment of Rs.15,000/- was part of settlement between the parties for execution and registration of the gift deed. In fact in the plaint the appellant has pleaded that plaintiff never intended nor executed the gift deed in favour of the defendants No.1 and 2 and actually the plaintiff had sold the suit land. In other words the appellant projected the case that he has sold the suit land for Rs.15,000/- to respondents which they had not paid. Therefore, execution and registration of the gift deed and alleged sale deed of …10… the suit land in favour of respondents for a consideration of Rs.15,000/- are entirely two different stands which the appellant has taken in the plaint. The gift of suit land by appellant in favour of respondents had completed on execution and registration of gift deed Ex.PW-1/B and acceptance thereof by respondents which has been proved on record.. 12. There is another aspect of the case, the learned Ist appellate Court has reversed the findings of the trial Court on issue NO.1 regarding mis-representation and undue influence and fraud of respondents for executing the gift deed. In Afsar Shaikh, supra the Hon’ble Supreme Court has held that whether a person is in a position to dominate the will of another and procure certain deed by undue influence, is question of fact and a finding there on is a finding of fact and if decided fairly in accordance with prescribed procedure, is not liable to reopen in second appeal. The law laid down by the Hon’ble Supreme court for undue influence, in my humble opinion will apply with respect to fraud and mis-representation also. It is not the case of the appellant that the learned Court below has taken into consideration inadmissible evidence or ignored some evidence which goes to the root of the case or the inference drawn by learned Ist appellate Court on the material on record is not at all possible. The appellant has failed to establish that learned Addl. District Judge has misread and mis-appreciated the evidence on record. This Court in second appeal will not re-appreciate the evidence, therefore, no fault can be found with the impugned judgment, decree. The learned …11… counsel for the appellant has failed to make out any case for interference. The learned Addl. District Judge has rightly appreciated the material on record and view taken by him requires no interference. The substantial questions of law 1 and 2 are decided against the appellant. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed. ( Kuldip Singh ) Judge. July 22, 2008 (sks)