Jharkhand High Court
(C) Tulika Kumari vs Akhilesh Prasad Son Of Late Rang Bahadur ... on 15 December, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 207 of 2002
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.207 of 2002
(Against the Judgment and decree dated 04.10.2002 passed by the learned
Additional District Judge, Simdega in Title Appeal No. 6/2001)
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1.(a) Rohit Kumar
1. (b) Shobhit Kumar Parth, Both sons of Late Shiv Dayal Prasad, R/o Guljargali, P.O.,P.S., Dist. Simdega
1. (c) Tulika Kumari, w/o Pancham Prasad, D/o late Shiv Dayal Prasad, R./o Kolebira, P.O., P.S. Kolebira, Dist. Simdega .... .... .... Appellants Versus
1. Akhilesh Prasad son of late Rang Bahadur Sahu and grandson of late Puran Sao, resident of Kersai, P.O. & P.S. Kurdeg, Dist. Simdega
2. Mithelesh Prasad son of late Rang Bahadur Sahu and grandson of late Puran Sao, resident of Kersai, P.O. & P.S. Kurdeg, Dist. Simdega
3. Pramod Prasad son of late Rang Bahadur Sahu and grandson of late Puran Sao, resident of Kersai, P.O. & P.S. Kurdeg, Dist. Simdega
4. Mukesh Prasad son of late Sheo Prasad, Resident of Mohalla Guljar Gali, P.O., P.S. & Dist. Simdega
5. Suresh Prasad son of late Sheo Prasad, Resident of Mohalla Guljar Gali, P.O., P.S. & Dist. Simdega
6. Laxmani Devi wife of late Munni Sahu and daughter of late Puran Sahu, resident of P.O. & P.S. Hatia, Dist. Ranchi
7. Dinesh Kumar Sahu son of late Chandramani Devi, resident of Vill- Tetar Hati Kunjalpada, P.O., P.S. & Dist. Sambalpur (Orissa)
8. Rajesh Kumar Sahu son of late Chandramani Devi, resident of Vill- Tetar Hati Kunjalpada, P.O., P.S. & Dist. Sambalpur (Orissa)
9. Sushma Devi w/o Nand Lal Sahu and daughter of late Chandramani Devi, resident of Mohalla- Abhaypur near Servbadai club, P.O. & P.S. Budhi Jam, Dist. Jarsugoda (Orissa)
10. Durgamani Devi, w/o late Chuni Lal Sao, resident of near Shiv Mandir, P.O. & P.S. Hatia, Dist. Ranchi
11. Kunti Devi, w/o Manohar Prasad and daughter of late Jagmani Devi, resident of P.O. & Vill- Thakurgaon, P.S. Burmu, Dist. Ranchi
12. Urmila Devi, w/o late Kailash Prasad and daughter of late Jagmani Devi, resident of Upper Hatia, P.O. & P.S. Hatia, Dist. Ranchi
13. Basanti Devi, w/o Krishna Prasad and daughter of late Jagmani Devi, resident of P.O. & P.S. Murhu, Dist. Khunti
14. Lalita Devi, w/o Radheshyam Sahu and daughter of late Jagmani Devi, resident of vill- Ghatotand P.O., P.S. & Dist. Gumla
15. Sabita Devi, w/o Jaibir Sahu and daughter of late Jagmani Devi, resident of P.O. & P.S. Murhu, Dist. Khunti
16. Manju Devi, w/o Sanjay Prasad and daughter of late Jagmani Devi 1 Second Appeal No. 207 of 2002 resident of P.O. & P.S. Murhu, Dist. Khunti
17. Usha Devi w/o late Bijendra Sahu and daughter of late Jagmani Devi resident of P.O. & P.S. Mango, Dist. East Singhbhum
18. Gita Devi, w/o Anil Kumar and daughter of late Jagmani Devi resident of Human Nagar P.O. & P.S. Bariatu, Dist. Ranchi
19. Sunita Devi, w/o Amar Prasad Sahu and daughter of late Jagmani Devi, resident of Ranchi Tent House main road Khunti, P.O., P.S. & Dist. Khunti
20. Nageshwar Prasad son of Arun Sahu resident of Chanho, P.O. Patratu, P.S. Chanho, Dist. Ranchi
21. Shanti Devi, w/o Vijay Prasad Bhagat and daughter of Rang Bahadur Sao resident of Vill- Lokai Gosaitola, P.O. & P.S. Lokai, Dist. Koderma
22. Suwanti Devi, w/o Saru Prasad and daughter of Rang Bahadur Sao resident of Tupudana Bus stand, P.O. Tupudana, P.S. Hatia, Dist. Ranchi
23. Sima Devi, w/o Rajesh Bhagat and daughter of Rang Bahadur Sao, resident of Raghunath Bhagat Lane Chhatini Para, P.O. & P.S. Jhalda, Dist. Purulia (West Bengal)
24. Rima Devi, w/o Santosh Kumar and daughter of Rang Bahadur Sao resident of Village, P.O. & P.S.- Tapkara, Dist. Jashpur (Chhatishgarh)
25. Baleshwar Prasad son of late Shyam Lal Sahu resident of Kersai, P.O. Kersai, Dist. Simdega
26. Mahesh Prasad son of late Shyam Lal Sahu resident of Kersai, P.O. Kersai Dist Simdega
27. Sambhu Prasad son of late Shyam Lal Sahu resident of Guljar Gali, P.O., P.S. & Dist. Simdega
28. Girdhari Prasad son of late Shyam Lal Sahu resident of Guljar Gali, P.O., P.S. & Dist. Simdega
29. Narayan Prasad son of late Shyam Lal Sahu resident of Aster Sa 401 Valley of Flowers, Vill- Khande Wali, P.O. & P.S. Khandewali, Dist. East Mumbai (Maharastra)
30. Binay Prasad son of late Shyam Lal Sahu resident of Aster Sa 401 Valley of Flowers, Vill- Khande Wali, P.O. & P.S. Khandewali, Dist. East Mumbai (Maharastra)
31. Sharda Devi w/o Brij Kishore Prasad Bhagat and daughter of late Shyam Lal Sahu resident of Hari Mati Apartment opposite Debuka Nursing Home P.O. & P.S. Lalpur, Dist. Ranchi
32. Basanti Devi, w/o Badri Prasad (Adv.) Bhagat and daughter of Shyam Lal Sahu resident of Bidri Ormal, P.O. Ormal, P.S. Chandil, Dist. Seraikella
33. Usha Devi w/o Santosh Gupta Bhagat and daughter of late Shyam Lal Sahu resident of Shyam Motors (Hundai Motor Car) near petrol pump Murdhawa, P.O, P.S. & Dist. Renukut (Uttar Pradesh)
34. Babita Devi w/o Pradeep Narayan Prasad Bhagat and daughter of late Shyam Lal Sahu resident of Prasad Cloth Store, P.O. & P.S. Aath Mallick, Dist Angal (Orissa)
35. Geeta Devi w/o Deepak Jaishwal Bhagat and daughter of late Shyam Lal Sahu resident of Bazartand, P.O. & P.S. Bundu, Dist. Ranchi
36. Ram Dayal Prasad, s/o late Puran Sao ... .... .... Respondents 2 Second Appeal No. 207 of 2002 For the Appellants : Mr. Rajeev Ranjan Tiwary, Advocate : Mr. Ranjit Kumar Tiwari, Advocate For the Respondents : Mrs. Jasvindar Mazumdar, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 04.10.2002 passed by the learned Additional District Judge, Simdega in Title Appeal No. 6/2001 whereby and where under, by the said judgment of reversal, the learned first appellate court has allowed the appeal and set aside the judgment and decree of the learned trial court being the court of Munsif, Simdega dated 01.03.2001 passed in Title Suit No.13 of 1996 by which the learned trial court dismissed the suit and declared that the gift deed no.797/89 dated 15.12.1989 is null and void.
3. The case of the plaintiff in brief is that the plaintiff has five sons. The plaintiff partitioned his property in the year 1976 amongst his sons and kept some of the land for his maintenance. In the month of October, 1989, the plaintiff was seriously ill, the elder son got him treated at Rourkela. His mental capacity was affected by age and due to several illness, the defendant being his third son taking advantage of the condition of the plaintiff brought the plaintiff to the registered office and obtained his signatures on some deeds prepared by him and got the same executed and submitted for registration on 15.12.1989. The defendant being the third son of the plaintiff used 3 Second Appeal No. 207 of 2002 undue influence on the plaintiff to sign on the concerned deed. The plaintiff further pleaded that the contents of the deed was not read over to him before his signatures were taken on it. The defendant dominated the will of the plaintiff and at that time, the defendant used his position to obtain the unfair advantage over the plaintiff in getting the gift deed on 15.12.1989 registered in his favour. The plaintiff asserted that execution of the gift deed dated 15.12.1989 was obtained by fraud. It is the further case of the plaintiff that when the plaintiff was aware of the mischief, he executed registered deed of cancellation of the gift deed dated 15.12.1989 and by the registered gift deed no.463/92 dated 26.09.1992, the plaintiff cancelled the registered deed no.797/89. The plaintiff then pleaded that he has no title or possession over any portion of the property in respect of which the registered gift of deed dated 15.12.1989 was executed. On the basis of the certified copy of the said gift deed, the defendant submitted a petition to the Circle Office, Simdega for mutation of the land. The said prayer was rejected but the L.R.D.C., Simdega passed an order for mutation in the name of the defendant vide Mutation Appeal No.13/90 on 19.08.1996. The plaintiff prayed for the following relief:-
(a) Adjudication that the registered deed gift no.797/89 dated 15.12.1989 is revoked, null and void and not binding on the plaintiff
(b) Adjudication that the registered deed of cancellation no.463/92 is valid.
(c) Declaration that the plaintiff had neither title nor possession on the suit house on 15.12.1989.
(d) Permanent injunction on follow up actions on the basis of the said gift deed dated 15.12.1989
(e) Any other relief ore reliefs to which the plaintiff is entitled to
(f) Cost of the suit.
4. In his written statement, the defendant challenged the 4 Second Appeal No. 207 of 2002 maintainability of the suit on various technical grounds and pleaded that the plaintiff partitioned the landed property on 05.01.1977. The mother of the defendant was no longer alive and the circumstances have compelled the plaintiff to live with the elder brother of the defendant namely Shyamlal Sahu. Shyamlal Sahu taking advantage of the old age of the plaintiff and his infirmity has used the plaintiff as a tool for his evil mechanism and desires including getting the suit filed. The defendant asserted that in the year 1989 and before that the plaintiff was of sound mind and health and out of his free will and mind without any undue influence has registered the deed of gift in favour of the defendant. The defendant was the professor of mathematics in Simdega College in the year 1989 and the plaintiff was loving him with all his soft feelings for him. The other brother of the defendant was not in necessity of any house at Simdega. The defendant invested all his life saving amounting to Rs.50,000/- approximately over improvement in the house and is residing therein in his own valid title and is in possession thereof.
5. On the basis of the rival pleadings of the parties, the learned trial court framed the following thirteen issues:-
(1.) Has the suit been grossly undervalued?
(2.) Whether the suit can proceed without payment of advalorem court fee on the value of the suit property?
(3.) Is the suit time barred?
(4.) Whether there is any cause of action for the suit? (5.) Whether the plaintiff acquired 10 decimals of land out of plot no.505 in Khata 64 village Simdega by virtue of S.A.R. Case 92/70-71 and he constructed a small house thereupon?
(6.) Is it true that the plaintiff and his sons partitioned his properties in 1976 including the house and land on plot 505 and prior to partition, much money from his own earning was invested by Shyam Lal Sahu, as such, 5 Second Appeal No. 207 of 2002 major partition of the house was given to him in Partition? (7.) Is it true that Shyamlal Sahu constructed from his earnings the upper manjil of the house after the said partition?
(8.) Whether, the 3rd son of the plaintiff, the defendant Sheo Dayal Prasad, taking the advantage of the mental capacity affected by age and sever sickness, brought the plaintiff to the registration office and by committing fraud on him and taking unfair advantage over the plaintiff by dominating the will of his father, got a registered gift deed dated 15.12.89 registered in his favour?
(9.) Whether deed of gift dated 15.12.89 was obtained by fraud as the plaintiff had become quite fall at that time and the defendant had authority on plaintiff?
(10.) Whether after knowledge of the fraud, the plaintiff executed any deed of cancellation and by this registered deed no.463/92 dated 26.9.92 he cancelled the registered gift deed no.797/89. The latter is not yet complete?
(11.)Whether an affidavit and a petition by the plaintiff about the fraud committed by the defendant, was submitted to the L.R.D.C. in Mutation Appeal 13/90 and in spite of it, the D.C.L.R. allowed the mutation for the suit property, house on plot 505 in favour of the defendant, as such the order was without jurisdiction, null and void?
(12.)To what relief the plaintiff is entitled to? (13.)Are the plaintiffs entitled to the reliefs as claimed for?
6. The learned trial court first took up issue nos. (6), (7), (8), (9), (10) and (11) together and after considering the evidence in the record came to the conclusion that the plaintiff in sound physical and mental condition after understanding completely got the said gift deed registered and the plaintiff was having full title and possession over the property gifted by him to the defendant and there is no justifiable reason for the plaintiff to cancel the gift deed which was executed and registered by him and which was accepted by the defendant and decided all the issues in favour of the defendant and against the plaintiff. Thereafter, the learned trial court took up issue no. (5) and observed that there is no dispute regarding the same between the parties hence, no adjudication of the said issue was required. The learned trial court next took up issue no. (3) for consideration and held that as the suit was not filed 6 Second Appeal No. 207 of 2002 within three years from the date of execution of the gift deed or not even from three years from the date of cancellation of the gift deed from which definitely the plaintiff had knowledge about the gift deed on 15.12.1989. Hence, the suit is barred by limitation. The trial court next took up issue no.(1) and came to the conclusion that the suit is not grossly undervalued and decided the issue no.(1) in favour of the plaintiff. The learned trial court thereafter took up no.(2), (4), (12) & (13) together and came to the conclusion that the plaintiff was not required to pay advelorem court fee but the plaintiff has no cause of action for the suit as though on the one hand the suit was filed beyond the period of limitation and on the other hand the plaintiff failed to establish that the defendant has got the gift deed executed deceitfully and decided the issue no.(2) in favour of the plaintiff but the issue no. (4), (12) and (13) in favour of the defendant and dismissed the suit on contest.
7. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Title Appeal No.6 of 2001 in the court of District Judge, Simdega which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment.
8. The learned first appellate court appreciated the evidence in the record independently and first took up issue nos. (3) and (4) together. The learned first appellate court wrongly mentioned in paragraph no.10 of the impugned judgment that the plaintiff cancelled the gift deed in the year 1989 and that the suit was within 7 Second Appeal No. 207 of 2002 time, as according to the first appellate court, the cause of action for the plaintiff declared the deed of gift null and void arose only after the mutation appeal was allowed by D.C.L.R. on 19.08.1996. Hence the suit having been filed on 12.09.1996 was within time according to the first appellate court and the first appellate court thus held that as the plaintiff has a fresh cause of action on the date when the mutation appeal of the respondent was allowed by the D.C.L.R. therefore it decided the issue no.(4) also in the affirmative by holding that the plaintiff has cause of action of the suit. The learned first appellate court then took up issue nos. (6), (7), (8), (9), and (10) together and after considering the evidence in the record came to the conclusion that there was no partition regarding the suit property and the respondent obtained a gift deed dated 15.12.1989 by undue influence due to fiduciary relationship with the appellant and after knowledge regarding the fraud committed by the respondent-plaintiff cancelled the gift deed and set aside the judgment and decree of the learned trial court and declared that the gift deed no.797/89 dated 15.12.1989 is null and void and allowed the appeal.
9. At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 19.01.2007 :-
(i) "Whether the Court of appeal-below while reversing the judgment and decree of the trial Court has erred in law in holding that the suit for cancellation of the gift deed and/or for declaration that the gift deed executed six years back was obtained by committing fraud, was maintainable?
(ii) Whether the Court of appeal-below has correctly appreciated the law with 8 Second Appeal No. 207 of 2002 regard to limitation in filing a suit for declaring the deed of gift as null and void?"
10. Mr. Rajeev Ranjan Tiwary, learned counsel for the appellants submits that the learned trial court for cogent reasons after discussing the evidence in the record have held that the plaintiff executed the gift deed in sound physical and mental health condition knowing pretty well the contents of the sale deed but the learned first appellate court arrived at the conclusion that the gift deed dated 15.12.1989 was cryptically by observing that from the perusal of the documents as well as the oral evidence adduced by both the parties, it came to the conclusion that there was no partition regarding suit property and the defendant obtained the gift deed dated 15.12.1989 by undue influence due to fiduciary relationship with the plaintiff. It is next submitted by Mr. Tiwary that even in a civil proceeding fraud and undue influence is to be specifically pleaded and to be proved beyond reasonable doubt.
Under such circumstances, the cryptic conclusion arrived at by the learned first appellate court that only because, according to it, the property gifted was not partitioned as the description of the said property do not find place in the documents relating to the partition, such finding of facts certainly is not sustainable in law.
Mr. Tiwary relied upon the judgment of Hon'ble Patna High Court in the case of Chhedi Tanti & Ors. vs. Smt. Gangati Devi & Ors.
reported in 1985 PLJR 91, paragraph no.8 of which reads as under:-
"8. Coming to the question as to the validity of the deed of gift. I think, the Court below has completely erred in law in 9 Second Appeal No. 207 of 2002 deciding the said question. Section 122 of the Transfer of Property Act defines gift. The ingredients of valid gift are of its being voluntary, without consideration and the same must be accepted by the donee and the said acceptance must be in the life time of the donor. I failed to appreciate how the Court of appeal below injected the concept of delivery of possession for a valid and operative gift. It is true that under the Mahomedan Law a deed of gift becomes valid when there is declaration of gift by the donor, and acceptance of the gift expressed or implied by or on behalf of the donee, delivery of possession of the subject of the gift by the donor to the donee. Only when these conditions are complied with, the gift is complete under the Mahomedan Law (See Md. Abdul Ghani v. Fakir Jahan Begam-49 Indian Appeal 195). Under Mahomedan law, it is essential to the validity of a gift that there should be a delivery of such possession, as the subject of the gift is susceptible to at the time of declaration and acceptance. The taking of possession of the subject-matter of the gift by the donee either actually or constructively, is necessary to complete a gift. Possession taken at a subsequent date is also sufficient if it was taken with donor's consent. The lower appellate Court, in the instant case, seem to have obsessed with the principles of Mahomedan law while dealing with the case of a gift amongst Hindus. The law applicable in the instant case is as laid down in section 122 of the Transfer of Property Act. Under general law one of the factors showing acceptance is, handing over of the instrument of gift duly executed, attested and registered to the donee. The production of the deed of gift by the donee will be a strong circumstance of delivery and acceptance of the deed of gift (See A.I.R. 1927 Privy Council 42 and A.I.R. 1975 Patna, 140). The acceptance of the deed of gift during the life time of the donar can also be inferred if the donee in token of acceptance, has singed the deed of gift. In the instant case, Sanfo Devi has accepted the gift and in token thereof put her thumb mark on the same prior to its registration. The registered instrument has also been produced by her from her custody which clearly signify acceptance of the deed of gift by the predecessor of the plaintiff. I am, therefore, of the opinion that the deed of gift was valid and operative. The lower appellate Court misdirected itself in law in holding that the deed of gift was invalid as it was not followed by delivery of possession."
(Emphasis supplied) and submits that the law applicable in the instant case has been laid down in Section 122 of Transfer of Property Act and the production of the deed of gift by the donee will be a strong circumstance of 10 Second Appeal No. 207 of 2002 delivery and acceptance of the deed of gift.
11. Mr. Tiwary next relied upon the judgment of this Court passed in S.A. No.279 of 2004 dated 03.11.2022 in the case of Biran Mahto & Anr. vs. Smt. Sumitri Devi & Ors. wherein this Court relied upon the judgment of Hon'ble Supreme Court of India in the case of Thota Ganga Laxmi & Anr. vs. Government of Andhra Pradesh & Ors. reported in (2010) 15 SCC 207 and held that the sale deed cannot be cancelled by executing a deed of cancellation and can only be cancelled by a competent civil court, and submits that by using the same analogy, a property gifted by a registered deed of gift, if the gift has validly been accepted by the done, cannot be unilaterally cancelled by the donor and it can only be cancelled by the competent civil court on the ground of the registered in having been obtained by fraud or any other similar ground. It is next submitted by Mr. Tiwary that as the plaintiff has come to Court for declaration of the registered gift deed executed by him to be null and void, Article 59 of the Schedule of Limitation Act, 1963 is applicable which prescribes the period of limitation of three years from the date of entitling the plaintiff to have the deed cancelled or set aside and the plaintiff has not come up with any specific date as on which date, he came to know that the gift deed dated 15.12.1989 was fraudulently obtained by the defendant but it can safely be said that at least on 26.09.1992 when he executed the deed of cancellation, he was very much aware of the allege fraud in execution by the registered deed of gift dated 15.12.1989 by him in 11 Second Appeal No. 207 of 2002 favour of the defendant. Hence, it is submitted that at least within three years from 26.09.1992, the suit ought to have been filed but the suit having been filed on 12.09.1996, the same is hopelessly barred by limitation. It is then submitted by Mr. Tiwary that the order of the D.C.L.R., Simdega dated 19.08.1996 has got nothing to do with the gift deed executed by the plaintiff in favour of the defendant. Hence, certainly the same cannot given any fresh cause of action for filing the suit for declaration that the gift deed executed by the plaintiff in favour of the defendant is barred by time. Hence, it is submitted by Mr. Tiwary that the impugned judgment passed by the learned first appellate court being not sustainable in law be set aside and the judgment and decree passed by the learned trial court be restored.
12. Mr. Jasvindar Mazumdar, the learned counsel for the respondent on the other hand defended the impugned judgment. It is submitted by Mrs. Mazumdar that cause of action is a bundle of facts. The first cause of action arose on 15.12.1989 whereas the last cause of action arose on 19.08.1996. So as the suit having been filed within three years i.e. on 19.08.1996, the same is well within time. Relying upon the judgment of Hon'ble Supreme Court of India in the case of Rameshwer Dubey and others v. Asha Kaur and others reported in (1996) 11 SCC 160, paragraph no.4 of which reads as under:-
"4. It is contended by the appellants that whatever may be the finding regarding the sale deed of 1966, there cannot be any second fraud in the case of the second sale deed. The suit ought to have been filed under Article 58 of the Schedule to 12 Second Appeal No. 207 of 2002 the Act and not under Article 64. We find no force in the contention. In view of the finding recorded by the courts below as a finding of fact that a fraud was played upon her, the fraud unravels the entire transaction to be a void document. Therefore, the limitation starts running from the date when the cause of action had arisen, viz., when dispossession was sought to be made. It is seen that the first respondent was sought to be dispossessed from her land in 1973. The sale deed came to be executed within three years from the date. Under these circumstances, since she remained in possession till that date, there is no need to file a suit under Article 59 of the Schedule to the Act. Therefore, the suit was rightly filed within three years under Article 58 of the Schedule to the Act and the courts below decreed it and the High Court upheld the same. Accordingly, it does not warrant interference." (Emphasis supplied)
13. Mrs. Mazumdar submits that a cloud was cast by the order of the D.C.L.R., Simdega passed on 19.08.1996 by allowing the mutation in the land in respect of which the gift deed has been executed by the plaintiff in the name of the defendant and the same having given a fresh cause of action, the first appellate court was proper in holding that the suit is well within time. It is further submitted by Mrs. Mazumdar that there is ample evidence in the record that the plaintiff was undergoing treatment at Rourkela and he was weak and ill on the day of execution of the gift deed dated 15.12.1989. Hence, the court of appeal has rightly reversed the judgment and decree of the learned trial court by holding that the suit for cancellation of the gift deed and for declaration that the gift deed executed six years back was obtained by committing fraud was maintainable. Hence, it is submitted by Mrs. Mazumdar that this appeal being without any merit be dismissed.
14. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention 13 Second Appeal No. 207 of 2002 here that it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Ranganayakamma v. K.S. Prakash (Dead) By Lrs and others reported in (2008) 15 SCC 673, paragraph nos.40 and 41 of which reads as under:-
"40. When a fraud is alleged, the particulars thereof are required to be pleaded. No particular of the alleged fraud or misrepresentation has been disclosed.
41. We have been taken through the averments made in the plaint. The plea of fraud is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was the nature of representation, who made the representations and what type of representations were made, have not been stated. Allegedly, on some occasions, Respondents 1 and 2 used to secure the signatures of one or more of the plaintiffs and Defendants 3 to 8 on several papers but the details therein had not been disclosed."
That when fraud is alleged, the particulars thereof are required to be specifically pleaded.
15. The Hon'ble Supreme Court of India in the case of Afsar Sheikh versus Soleman Bibi reported in AIR 1976 SC 163 held that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may even overlap in cases but in law they are of distinct category which requires to be separately pleaded with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant and was much too insufficient to amount to an averment of undue influence by observing in paragraph -15 as under:-
"15. While it is true that 'undue influence', 'fraud', 14 Second Appeal No. 207 of 2002 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
16. Now coming to the facts of the case, so far as the second substantial question of law as to whether the Court of appeal-below has correctly appreciated the law with regard to limitation in filing a suit for declaring the deed of gift as null and void is concerned, Article 59 of the schedule of the Limitation Act, 1963 is applicable which prescribes the period of three years. Though the plaintiff has not specifically pleaded in the plaint as to on which date, it came to know about the alleged fraud having been committed by the defendant in getting the registered deed of gift executed in favour of him by the plaintiff but since admittedly on 26.09.1992 the plaintiff got the deed of cancellation executed mentioning therein that the earlier deed was obtained by fraud by the defendant, so at least by 26.09.1992, the plaintiff was very much aware about the alleged fraud which is the cause of action which led him to file the suit for declaration of the deed of gift as null and void and the suit having been filed on 12.09.1996 i.e. beyond the period of three years from 26.09.1992 in the considered opinion of this Court, the same is barred by time.
17. So far as the judgment of the Hon'ble Supreme Court of 15 Second Appeal No. 207 of 2002 India in the case of Rameshwer Dubey and others v. Asha Kaur and others (supra) is concerned, the facts of that case is entirely different from the facts this case. In that case as there was two sale deeds, the first one was executed on 12.07.1966 and the second one was executed on 14.12.1970 and subsequently, the plaintiff was dispossessed on 15.02.1972. But here in this case there are neither two registered deeds nor there is any allegation of dispossession of the plaintiff by the defendant on the basis of the said gift deed or even by otherwise in any other manner. So under such facts of that case, Hon'ble Supreme Court observed that as the sale deed came to be executed within three years from the date of filing of the suit. So under such circumstances the said suit was held to be within time by applying Article 58 of the schedule of the Limitation Act, 1963.
18. So far as this case is concerned, the plaintiff nowhere says that he has been dispossessed. The plaintiff does not dispute that the defendant has been in possession of the suit land. So far as the order of D.C.L.R., Simdega dated 19.08.1996 is concerned the said order was passed in an appeal allowing the mutation of the name of the plaintiff, certainly, the same cannot give any fresh cause of action for filing the suit for cancellation of the gift deed executed by the plaintiff in favour of the defendant on the ground that the said deed of gift was obtained by fraud, as it is a settled principle of law that an entry in the revenue record can neither create nor extinguish the title of any person. Hence, in the considered opinion 16 Second Appeal No. 207 of 2002 of this Court, the court of appeal below could not correctly appreciate the law with regard to the limitation by holding that the order dated 19.08.1996 passed by D.C.L.R., Simdega has brought the suit within the period of limitation. Thus, this Court has no hesitation in holding that the suit of the plaintiff is barred by limitation. Accordingly, the second substantial question of law is answered in the negative.
19. So far as the first substantial question of law as to whether the Court of appeal-below while reversing the judgment and decree of the trial Court has erred in law in holding that the suit for cancellation of the gift deed and/or for declaration that the gift deed executed six years back was obtained by committing fraud, was maintainable is concerned, the learned first appellate court has declared the deed of gift to be null and void on the ground the same was obtained by undue influence due to fiduciary relationship with the plaintiff of the defendant. Nowhere, in the impugned judgment by the learned first appellate court, it has been mentioned that as to in what manner fraud has been committed by the defendant. Fiduciary relationship is a relationship between two parties when one party (fiduciary) has the duty to act in the best interest of the other party (beneficiary or principal). It is common knowledge that the gift is never normally given by a doner to a stranger. Under such circumstances, merely because there is relationship of father and son between the plaintiff and the defendant on that ground an undue influence cannot be inferred 17 Second Appeal No. 207 of 2002 when the gift deed is a registered one and was registered in the office of the Sub-Registrar and the Sub-Registrar who is a public servant having a duty to ensure that the executant of the deed admits execution in free will and without any undue influence. Moreover, the fact of undue influence due to fiduciary relationship has not been specifically pleaded by the plaintiff and what the plaintiff pleaded is fraud and the issue no. (9) in respect of which the finding of fact arrived at by the learned first appellate court was also to the effect that "whether the deed of gift was obtained by fraud" hence, under such circumstances, this Court is of the considered view that the court of appeal below while reversing the judgment and decree of the trial court has erred in law by not holding that the suit for cancellation of the gift deed and for declaration of the gift deed executed six years back was obtained by committing fraud and is the first appellate court in reversing the judgment and decree of the trial court, even though not specifically holding that the deed of gift was obtained by fraud, is not sustainable in law. The first substantial question of law is therefore answered in the affirmative.
20. Now coming to the facts of the case that it is an admitted case of the plaintiff that the plaintiff went to the Sub-Registrar office for execution and signing the documents and also admitted execution of the documents before the Sub-Registrar as a result of which, the deed of gift dated 15.12.1989 was registered.
21. As even the learned first appellate court did not find any 18 Second Appeal No. 207 of 2002 element of fraud, in execution of the registered deed of gift by the plaintiff in favour of the defendant. On the basis of the evidence available in the record, this Court has no hesitation in holding that the plaintiff has failed to establish any fraud having been committed in the execution of the said gift deed dated 15.12.1989 and that the suit is hopelessly barred by limitation.
22. Accordingly, the impugned judgment and decree passed by the learned first appellate court is set aside and the judgment and decree passed by the learned trial being the court of Munsif, Simdega dated 01.03.2001 passed in Title Suit No.13 of 1996 is restored.
23. In the result, this appeal is allowed on contest but under the circumstances without any costs.
24. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 15th December, 2022 AFR/ Sonu-Gunjan/-
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