IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 19 of 1996 Decided on : March 16, 2010 Sudesh Devi …Appellant Versus Bimla Devi (dead) through LRs ...Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D. Sood, Advocate. For the Respondent: Mr. Ajay Sharma, Advocate. Surjit Singh, Judge (oral) This Regular Second Appeal was admitted on the following substantial questions of law, vide order dated 5.2.1996: “1. Whether in the facts and circumstances of the case, it was established that the Gift Ext.D1 was obtained by the defendant by undue influence, misrepresentation and fraud?” 2. Whether the gift deed Ext. D1 which is the basic document of title has been misconstrued and the evidence on record has been misread which has vitiated the findings?” 2. Facts relevant for disposal of the appeal may be stated. Appellant-plaintiff Sudesh Devi filed a civil suit in the Whether reporters of the local papers may be allowed to see the judgment? …2… trial Court for cancellation of gift deed Ext.D-1 dated 5.7.1989, which purports to have been executed by her in favour of respondent Bimla Devi (deceased), now represented by her legal representatives. It was pleaded that plaintiff’s mother and defendant-respondent Bimla Devi were real sisters. Mother of the plaintiff died, when the plaintiff was only 5-7 months old. She was brought up by the defendant and was married off to a man in Jammu area, when she was 13. Plaintiff had been visiting the defendant even after the marriage, because she treated the defendant like her mother. She was, thus, under the influence of defendant. Some time in the year 1989, defendant accompanied by her son visited the plaintiff and obtained her signatures on some papers, telling her that the papers pertained to a case regarding partition, which was pending in the Court of Tehsildar. A few months later, defendant alongwith her son again visited the plaintiff and told that her (plaintiff’s) presence was required before Tehsildar Dehra in Kangra District. Plaintiff came to Dehra, where she was taken to an office. There her signatures were obtained on some papers, making her believe that the papers pertained to appointment of an Attorney for pursuing the matter regarding partition. Plaintiff came to know about the execution of gift deed much later. She filed a suit in the Court of Sub Judge, Dehra in the year 1991, seeking declaration that she was owner of the property, purportedly gifted vide gift deed Ext.D1 and that the gift was result of …3… fraud, misrepresentation and undue influence and as such not binding upon the plaintiff. 3. Defendant denied the allegations made in the plaint. It was stated that the plaintiff was estopped to file the suit, she had no locus-standi to sue, she had no cause of action, suit was not maintainable in the form in which it had been filed and the defendant was entitled to special Costs. 4. Various issues were framed by the trial Court. On conclusion of the trial, it was held by the trial Court that the gift was the result of misrepresentation and undue influence and consequently suit was decreed. 5. Defendant-respondent filed appeal in the Court of learned District Judge, who held that the plaintiff voluntarily executed the gift deed in favour of defendant and consequently, accepted the appeal and dismissed the suit. 6. I have heard learned counsel for the appellant as also the learned counsel, representing the respondent, and gone through the record. 7. Ext. D1 is the gift deed. Defendant examined not only herself as her witness, but also the Registrar of Documents, namely DW-2 Sh. Lekh Ram Sharma, scribe of the gift, DW-3 S.M. Minhas, Advocate, and also one of the attesting witnesses of the gift deed DW-4 S.K. Vaid, Advocate. 8. Bimla Devi stated that gift deed was executed by the plaintiff, voluntarily, and it was on account of love and affection which she had had for her, on account of her having …4… brought her up like her own daughter and having married off. 9. DW-2 Lekh Ram Sharma stated that gift deed was presented to him for registration by the appellant and that he told her that the document was a gift made by her in respect of her land in favour of the defendant and whether she had executed such a document, and that after admitting that she had executed the gift deed in favour of the defendant, she put her signature on the gift deed, in his presence. No doubt in the cross-examination, he stated that the plaintiff was not personally known to him, but the fact that the plaintiff put her signature in his presence, which signature she not only does not deny, but rather admits in the cross-examination, while appearing as PW-1, leaves no doubt that the plaintiff herself appeared before the Sub Registrar at the time of registration of the gift deed. Registrar’s testimony that he told her that it was a gift deed executed by her and she admitted this fact further proves that gift deed was voluntarily executed by the plaintiff. Statement of Registrar of Documents also falsifies the testimony of the plaintiff that she was not taken to the Registrar, but to a clerk, sitting in a separate room and there she was told that the document pertained to appointment of Attorney, authorizing him to pursue the matter regarding partition on her behalf. 10. Testimony of the Scribe and one of the attesting witnesses of the gift deed, namely DW-3 S.M. Minhas and …5… DW-4 S.K. Vaid also proves that the gift deed was voluntarily executed by the plaintiff. Scribe DW-3 S.M. Minhas stated that the gift deed was written by him on the asking of the plaintiff, who was identified by DW-4 S.K. Vaid and that after he scribed the gift deed, plaintiff put her signatures thereon as executant of the deed. 11. DW-4 S.K Vaid stated that plaintiff was known to him and that gift deed had been got scribed by her voluntarily and she executed it in his presence. 12. In view of the above stated position, substantial questions of law No.1 and 2, on which the appeal was admitted, are answered in favour of the respondent- defendant. Consequently, the appeal is dismissed. March 16, 2010 (ss) (Surjit Singh), J