IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 181 of 2001. Reserved on: 20.06.2011. Decided on 14.07.2011. _____________________________________________________ Bansi Ram. …Appellant. -Versus- Shri Prem Singh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Romesh Verma, Advocate. For the respondents. : Ms. Devyani Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 17.01.2001, passed by the learned Additional District Judge, Solan, Camp Court at Nalagarh, District Solan, H.P. in Civil Appeal No. 97-NL/13 of 1999. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the predecessor-in-interest of the respondents, Gita Ram (hereinafter referred to as ‘the plaintiff’ for convenience sake) had instituted a suit for declaration with consequential relief of permanent prohibitory injunction and in the alternative for maintenance. According to the plaintiff, his wife had left him about 40 years’ ago and thereafter her whereabouts were not known. He had no issues and had been living alone. His brother took advantage of his solitary condition and started visiting his village and showing sympathy towards him. One day, 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - he got will of property of the plaintiff in the names of his sons, S/Shri Dina Nath, Gian Chand and Teerath Ram. Plaintiff objected to the same. The plaintiff never knew and never executed any will in favour of the sons of the defendant. The defendant apprised the plaintiff that he had made will of his property in favour of his brother’s sons, namely, S/Shri Prem Singh, Jai Singh and Hans Ram. Plaintiff told the defendant that his cousin got his thumb impression on some papers relating to permission for cutting of Khair trees from the land which he owned jointly with his brother. The defendant told the plaintiff to accompany him to Ramshehar on 28.02.1994 if he wanted to get the will revoked in case he was not interested in bequeathing his property in favour of his brother’s sons. He contacted in the evening his brothers and his sons, who confirmed that they have got the will of entire property in their favour. The plaintiff believed the defendant and after reposing faith in him, he accompanied him to Ramshehar for getting the will revoked. In the evening, he was suffering from fever and next day, the defendant took him to Ramshehar with the help of his sons and provided him pills and asked him to sit with the petition writer who was to scribe the revocation deed and thereafter he brought Sh. Datta Ram and Ram Lok there. The scribe and S/Shri Datta Ram and Ram Lok assured him that he was executing a revocation deed and obtained his thumb impression on certain papers and thereafter when he visited the office of Sub-Registrar, he did not ask him anything and was made to sign more papers by the registration Clerk. Next day, the defendant came to his village and apprised the plaintiff that he had gifted the entire land in his favour, - 3 - therefore, both of them should live together under the same roof. According to the plaintiff, the defendant was closely related to him and he has taken undue advantage of the relationship subsisting between them and dominated his will to execute a gift deed which he never wanted to do. Therefore, the gift deed dated 28.02.1994 alleged to have been executed by him in favour of the defendant was wrong, illegal, unconsciousable and was liable to be set aside. 3. The defendant contested the suit. On merits, he pleaded that the plaintiff had executed a gift deed dated 28.02.1994 in his favour voluntarily and out of his free will in sound and disposing state of mind. According to him, the plaintiff had earlier executed a Will dated 08.06.1981 in favour of sons of his brother Shri Ram Saran, which was revoked by him on 24.04.1990 when they stopped serving him. Thereafter, the plaintiff approached the defendant, who is his close relative to lookafter him and his property and the defendant accordingly asked his sons to lookafter the plaintiff. He had been also looking after him. Thereafter, the plaintiff firstly executed will dated 12.06.1991 in favour of the sons of the defendant which was registered with Sub-Registrar Ramshehar and thereafter, out of love and affection, he got gift deed executed in his favour on 28.02.1994. 4. The plaintiff filed the replication. The trial Court framed the issues. The learned Sub-Judge Ist Class, Nalagarh, District Solan decreed the civil suit on 11.01.1999 and the gift deed dated 28.02.1994 was declared illegal, null and void. However, his prayer for injunction against the defendant was refused. The defendant preferred an appeal before the learned - 4 - Additional District Judge, Solan, Camp Court at Nalagarh, District Solan, H.P.. The same was dismissed on 17.01.2001. Hence, this Regular Second Appeal. This Regular Second Appeal was admitted on the following substantial questions of law on 21.09.2001: 1. Whether the two courts below have rightly held the gift in question to be not valid on the ground that it was obtained by undue influence after negating the case of the plaintiff that the gift was not as a result of fraud and misrepresentation? 2. What is the effect of the Will executed by deceased plaintiff in favour of sons of defendants if the gift in favour of defendants is held to be invalid? 5. Mr. Romesh Verma, learned counsel for the appellant has only argued on substantial question of law No. 1 on the validity of the gift deed dated 28.02.1994. 6. Ms. Devyani Sharma, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. PW-1 Shri Geeta Ram has testified that he was owner of 28 bighas of land and he has no issues. His wife had left him 40-50 years ago. Shri Ram Saran was his real brother and he was residing separately. He used to reside alone in his house. He deposed that Bansi Ram is the son of his mother’s brother. He further deposed that he used to visit the plaintiff. He testified that he remained sick and he executed the will in favour of the sons of his brother, namely, Shri Jai Singh, Prem Singh and Hans Raj. - 5 - He further stated that Shri Bansi Ram told him that the plaintiff would be taken to Ram Shehar for his medical treatment and for revocation of the will, which was executed in favour of Shri Jai Singh, Prem Singh and Hans Raj. He further stated that on the assurance of the defendant, the plaintiff came to Ramshehar alongwith Shri Bansi and his son Shri Gian Chand. He further stated that the defendant had given him two pills and his thumb impression was obtained on the pretext that already executed will has been revoked. He further stated that the plaintiff believed the defendant and marked him thumb impression. Thereafter, he was presented before the Tehsildar. He was apprised that the will already executed by him stood revoked. On the next day, he was told by the defendant that the gift deed was executed qua his property and now the plaintiff could not do anything. Thereafter, he appeared before the Tehsildar and told him not to sanction mutation. He further stated that he filed the suit within 8 days of the execution of the gift deed. He has also filed report in the Police Station under Section 420 of the Indian Penal Code against the defendant. He further testified that he has no land except the suit land. The defendant has taken forcible possession and he was residing in the house of his sister’s husband and has no source to maintain himself. 9. PW-2 Shri Ram Singh has testified that he was posted as M.H.C. at Police Station Ramshehar since 14.06.1996. He has brought the original F.I.R. No. 19/94, copy of which is Ex. PW- 2/A. 10. PW-3 Shri Maya Dhar has testified that the parties are known to him and on 28.02.1994, he had visited Ramshehar - 6 - alongwith Shri Nathu Ram and has stated that they were in the premises of Tehsildar. They were sitting nearby petition writer Shri Ashok Kumar. The plaintiff told that he intended to revoke the will, which he had executed in favour of sons of his brother. He further stated that Shri Ashok Kumar petition writer did not read over the contents of the document to the plaintiff and Shri Bhaga Ram took papers and went to Naib Tehsildar and even Sub Registrar did not read over the contents of the documents to the plaintiff. The defendant was lateron told that he had got executed gift deed from the plaintiff. Thereafter, the plaintiff visited the Police Station. 11. PW-4 Shri Rajinder Parshad has testified that he was present at Police Station Ram Shehar on 28.02.1994. He has stated that number of his taxi was HP-02-2931, which was hired for `150/-. He further deposed that 4-5 persons were in the taxi, namely, Bansi Ram and Ram Lok, Lumberdar etc.. Shri Gita Ram was in intoxicating condition. He has stated that the passengers of the taxi were talking while travelling in the taxi that they had executed the gift deed and now the plaintiff is at liberty to do anything. He has also stated the he left the passengers at Nand and after 14-15 days, he was called by the Investigating Agency at the Police Station. 12. DW-1 Shri Husan Chand has deposed that Shri Satish Kumar, petition-writer was his son, who had died and he was familiar with his handwriting. He has stated that the documents Ex. DW-1/A and Ex. DW-1/B placed on record have been written by his deceased son. According to him, Shri Hukam Chand, Lumberdar had also died. - 7 - 13. DW-2 Shri Sukh Ram has testified that Shri Geeta Ram, plaintiff was known to him and in his presence revocation of will was executed by the plaintiff. He has stated that the revocation of will is Ex. DW-1/A. According to him, the contents of revocation of will were read over by the deed writer to the plaintiff and after admitting the contents of revocation of will to be true, the plaintiff had marked his thumb impression in his presence and in the presence of Shri Hukam Chand. Thereafter, the document was produced before the Sub-Registrar and the plaintiff had admitted the contents of the revocation of will as correct before the Sub Registrar. 14. DW-3 Bhagat Ram has testified that the will was executed by the plaintiff at Nalagarh. He further stated that the marginal witness was Shri Hukam Chand, Lumberdar. He also stated that the will Ex. DW-1/A was executed at the instance of the plaintiff and contents of the will were read over to the plaintiff, who after admitting the same to be true, had put his thumb impression. 15. DW-4 Shri Ashok Kumar, petition-writer has deposed that gift deed Ex. DW-4/A was written by him. He has stated that the same was written at the instance of Geeta Ram. He has stated that the contents of gift deed were read over and explained to the plaintiff. Plaintiff admitted the contents to be true and thereafter put his thumb impression. He has also stated that the gift deed was entered in his register. 16. DW-5 Shri Bansi has testified that the name of brother of plaintiff was Shri Ram Saran. Shri Ram Saran has three sons and he has stated that 14-15 years’ ago, plaintiff had - 8 - executed will in favour of sons of Ram Saran and the will was revoked 8-9 years’ back because the son of the brother of plaintiff used to beat him. Thereafter, the plaintiff executed a will in favour of the son of defendant. He further stated that thereafter the plaintiff executed gift deed qua 28 bighas 8 biswas of land and house in favour of defendant. He has stated that the gift deed was written by Ashok Kumar, petition-writer in the presence of marginal witness, which was produced before the Sub-Registrar. Plaintiff was in sound state of mind and at the time when he executed the gift deed Ex. DW-4/A, he was in possession of the suit property. However, he has not corroborated his statement. According to him, the present suit was instituted by the plaintiff at the instance of his brother. 17. DW-6 Shri Ram Lok has deposed that plaintiff had executed the gift deed qua his land and house in favour of Shri Bansi, which was written by Shri Ashok Kumar petition writer at Ramshehar at the instance of Shri Geeta Ram and the same was readover to the doner, who after admitting the contents of the same as correct, has marked his thumb impression in his presence and in the presence of Shri Data Ram. He has deposed that thereafter the gift deed was presented before Sub Registrar and the contents of the gift deed were read over to the doner by the Sub Registrar and after admitting the gift deed in the court, doner had marked his thumb impression in the presence of marginal witnesses. He further stated that the gift deed was executed by the plaintiff in sound disposing state of mind and no fraud was committed. - 9 - 18. The plaintiff has placed on record complaint, Ex. PW- 2/A, Ex. P-1, copy of Jamabandi for the years 1989-90, Ex. P-Y, copy of Khasra Girdwari qua the suit land from 25.10.1996 to 07.04.1997, Ex. P-4, Nakal Shajra. Ex.DW-1/A is the revocation deed dated 24.04.1990. Ex.DW-1/B is the alleged will, which was executed by Geeta Ram on 12.06.1991 in favour of Dina Nath, Gian Chand and Tirth Ram, sons of Shri Bansi Ram. Ex. DW-4/A is the alleged gift deed, which was executed by Shri Geeta Ram qua 28 bighas 8 biswas of land of immoveable property and house situated in Abadi in favour of Shri Bansi Ram. 19. PW-1 has testified that the defendant was related to him and was in a dominating position. He has taken the plaintiff to Ram Shehar in order to revoke the will, which he had executed in favour of his brother’s sons. He was given pills and was apprised that the will already executed by him was revoked. He believed the defendant and put his thumb impression. On the next day, he was told by the defendant that he got the gift deed executed qua the immoveable property and house of deceased Geeta Ram. Thereafter, he has approached the Sub-Registrar and also registered F.I.R. against the defendant. The copy of F.I.R. is Ex. PW-2/A. PW-3 Shri Mayadhar has testified that the plaintiff told in his presence to the deed writer that he only intend to revoke the will which was executed in favour of sons of his brother. DW-4 Ashok Kumar did not read over the contents of the document to the plaintiff. Plaintiff has immediately lodged a complaint at the Police Station and has also approached the Naib Tehsildar at Ram Shehar. The suit was also filed after eight days of the execution gift deed dated 28.02.1994. He was residing - 10 - alone. The defendant has only produced one marginal witness to prove Ex. DW-4/A, i.e., DW-6 Shri Ram Lok. He has testified that he went away for some time and when he came back, the gift deed was prepared. Thus, Ex. DW-4/A was not scribed in his presence. The defendant has taken active role in preparation of the gift deed. As noticed above, he has purchased the stamp papers for execution of the gift deed. It is only one of the circumstances to be taken into consideration by the Court, however, all the facts have to be cumulatively seen whether the gift Ex. PW-4/A has been obtained by exercising un-due influence by the defendant or not. The plaintiff was an illiterate old man. He was residing alone. His wife has left him. The defendant was in a position of dominating his will. He has taken him to Ram Shehar on the assurance that he will help him in revoking the will which he has executed in favour of his brother’s sons. The contents of Ex. DW-4/A were never readover to him by the scribe. One of the marginal witnesses, DW-6 Shri Ram Lok was not present when the gift deed was prepared. There was no compelling reason for the plaintiff to divest him of the entire suit property and the house. He has taken all the precautions immediately by lodging a complaint with the Sub Registrar and by filing an F.I.R. at Police Station Ram Shehar and instituted this suit within the shortest possible time of eight days. Both the Courts below have come to the right conclusion that the plaintiff has failed to prove that the gift deed Ex. DW-4/A, dated 28.02.1994 is the out come of un-due influence exercised by the defendant. 20. Mr. Romesh Verma, learned counsel for the appellant has also argued that even if this Court comes to the conclusion - 11 - that the gift dated 28.02.1994 is not valid, in that eventuality, defendants’ sons are entitled to property on the basis of earlier will executed in their favour. However, the will which has been alleged to be made by the plaintiff in favour of the sons of defendant, has not been proved in the present case. This plea is also not open to the defendant once he has based his entire case on the basis of gift deed Ex. DW-4/A. 21. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge July 14, 2011. (bhupender) - 12 -