Himachal Pradesh High Court
Sunehro Devi vs Parkash Chand on 16 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 203 of 2011 Reserved on: 30.11.2016 .
Decided on: 16.12.2016
Sunehro Devi ....Appellant.
Versus
Parkash Chand ... Respondent.
of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the appellant
rt : Mr. R.K. Gautam, Sr. Advocate with
Mr. Gaurav Gautam, Advocate.
For the respondent : Mr. Neeraj Gupta and Ms. Poonam
Gehlot, Advocates.
Ajay Mohan Goel, Judge
By way of this appeal, the appellant/plaintiff has challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No. 142 of 2008, dated 07.03.2011, vide which, learned Appellate Court while accepting the appeal filed by the present respondent/defendant, set aside the judgment and decree passed by the Court of learned Civil Judge ( Jr. Divn.) Barsar, in Civil Suit No. 42 of 2005, dated 20.08.2008, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 2whereby learned trial Court had decreed the suit of appellant/plaintiff for declaration and permanent prohibitory injunction.
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2. Brief facts necessary for the adjudication of this appeal are that appellant/plaintiff (hereinafter referred to as 'plaintiff') filed a suit for declaration to the effect that gift deed dated 05.03.1992 qua land comprised in Khata No. 419, Khatauni No. 461, Khasra No. 877, of measuring 25k-0m, situated in Tikka Dhangot, Tappa Dhatwal, Tehsil Barasar, District Hamirpur, H.P. (hereinafter referred to as 'suit land') rt in favour of defendant was null and void and not binding on the plaintiff and mutation, if any, was also wrong, illegal, null and void and not binding on the plaintiff and as per note clause, if defendant failed to provide services to the plaintiff, the same was liable to be declared null and void abinitio and defendant had no right to interfere with the peaceful possession of the plaintiff over the suit land and defendant was liable to be restrained permanently by a decree of permanent injunction restraining him from interfering with the possession of the plaintiff over the suit land and defendant be also restrained from alienating the same on the basis of wrong revenue entries. As per the case put forth by the plaintiff in the plaint she was a rustic, widow, parda nashin illiterate lady and defendant who was distantly related to her had taken her in confidence after the death of ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 3 her husband. She used to repose her full confidence in the defendant and was solely dependent on him for taking her day to day decisions.
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After gaining her confidence, defendant impressed upon her that she should take legal steps to ensure that her estate should not go waste after her demise. On this pretext, he took her to the office of Sub Registrar, Barsar and got a gift deed executed in his favour. As per of plaintiff, defendant procured all the documents required for execution and registration of gift deed at his own cost without the consent of rt plaintiff. As per plaintiff, defendant had also produced document writer, witnesses, identifier to the plaintiff before the Sub Registrar and all persons involved in the execution and registration of gift deed were in league with each other with the intent to defraud the plaintiff.
It was further her case that defendant exercised undue influence upon her in signing the documents by mis-representing her that documents and signatures were required to save her property. She being an illiterate lady was not aware of real character of transaction whereby her estate was gifted to defendant for her past as well as future services and as per note clause, if defendant failed to maintain the plaintiff, then the execution of gift deed was deemed to be cancelled.
It was further her case that she came to know that she had been defrauded by defendant in the first week of July 2004 when the ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 4 settlement department demarcated/measured the suit land in her presence and told the name of actual owner as Prakash Chand .
(defendant) and thereafter plaintiff inquired about transactions from the Halka Patwari and obtained date of execution of gift deed. On these bases, she filed the suit to the effect that gift deed dated 05.03.1992, which had been procured by the defendant from her, was of wrong, null and void and not binding on her alongwith other reliefs.
3. Suit so filed by the plaintiff was contested by the rt defendant. As per stand taken by the defendant in the written statement, he admitted that husband of the plaintiff and defendant were real brothers and after the death of husband of the plaintiff, he provided each and every necessity of the plaintiff and also looked after the daughters of the plaintiff and solemnized their marriages.
Defendant denied that he gained confidence over the plaintiff. It was mentioned in the written statement that at the time of registration of gift deed, plaintiff was fully conversant with the facts and contents of the transaction and same was written by petition writer and the gift deed was read over and explained to the plaintiff by the petition writer as well as Sub Registrar, Barsar and lastly by the Assistant Collector at the time of attestation of the mutation and there was no question of defrauding plaintiff by him. It was further the stand of the defendant ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 5 that plaintiff gifted the suit land in favour of defendant in lieu of past services which were rendered by defendant to her from time to time .
both in cash and kind which was also clear from postal receipts, medical bills etc. It was further mentioned in the written statement that after the execution of gift deed, possession of the entire suit land was delivered by the plaintiff to defendant and he had spent more than of Rs. 3,00,000/- on the construction of a residential house over the same. It was further stated in the written statement that mutation was rt also rightly sanctioned in his favour. The accrual of cause of action as was alleged in the plaint was also denied by the defendant.
4. In the replication filed to the written statement, plaintiff denied the contents of written statement and reiterated and reaffirmed her claim made in the plaint.
5. On the basis of pleadings of the parties, learned trial Court framed the following issues.
"1.Whether the plaintiff is entitled for a decree of declaration to the effect that gift deed dated 5.3.1992 has been legally null and void?? OPP.
2. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction as prayed? OPP
3. Whether the suit is not maintainable in the present form? OPP.
4. Whether the suit is barred by law of limitation? OPD.
5. Whether the plaintiff has no locus standi to file the present suit? OPD.::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 6
6. Whether the defendant is entitled to special cost U/S 35-A of C.P.C.? OPD.
7. Relief."
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6. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court as under.
of
"Issue No.1 : Yes.
Issue No. 2 : Yes.
Issue No. 3 : No.
Issue No. 4 : No.
Issue No. 5 : No.
rt
Issue No. 6
Issue No. 7 (Relief)
: No.
: The suit is decreed as per
operative part of the Judgment."
7. Learned trial Court thus decreed the suit of plaintiff by declaring gift deed dated 05.03.1992, Ext. DW4/A as well as mutation attested and sanctioned on the basis of said gift deed as null and void by holding plaintiff to be absolute owner in possession of the suit land. Learned trial Court also passed decree of permanent prohibitory injunction in favour of plaintiff and against the defendant restraining the defendant from causing any kind of interference over the suit land.
8. While arriving at the said conclusion, it was held by the learned trial Court that plaintiff challenged the gift deed alleged to have been executed by her in favour of defendant on two grounds i.e firstly that defendant had got executed gift deed in his favour ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 7 fraudulently by misrepresenting the facts and that the same was a result of undue influence exerted upon her by the defendant and .
secondly that defendant had to render all kind of services to her in future and in the event of such services not being rendered, the gift deed would be revocable automatically.
9. Learned trial Court held that to prove the allegations of of undue influence and misrepresentation in the execution of a document, one has to be in a position to dominate the will of rt executant and it also has to be seen that transaction was conscionable.
Learned trial Court further held that applying these principles to the facts of the case, plaintiff had pleaded that after the death of her husband, defendant who was her 'devar', asked her to take legal steps to save her property after her demise and under that pretext, defendant took plaintiff to Tehsil office and fraudulently procured her thumb impression on some documents and also got gift deed executed by concealing these facts. Learned trial Court held that plaintiff while in witness box as PW1 had categorically proved these contentions of exercise of undue influence and misrepresentation by defendant upon her. Learned trial Court further held that PW2 Devi Ram also supported and corroborated the version of the plaintiff to the effect that plaintiff had disclosed to him that defendant deceived her and got ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 8 executed gift deed in his favour on the pretext that plaintiff should take legal steps to save her estate after her demise and under this garb .
procured her thumb impression on some documents. Learned trial Court further held that plaintiff had also proved cause of action by stating that when settlement operation took place in the area in the year 2004, that is when, she came to know about the mischief played of upon her by the defendant. Learned trial Court held that defendant examined marginal witness Atma Ram to the alleged gift deed as rt DW6, who was stated to be brother-in-law of defendant but while in one part of his cross examination, he admitted his relationship with the defendant, however, during the end of his cross examination, he denied it. Learned trial Court held that conduct of this witness showed his connivance with the defendant in managing the execution of alleged gift deed by exercising undue influence and misrepresentation upon the plaintiff. Learned trial Court also held that plaintiff was a widow handicapped rustic woman and after the death of her husband she was under shock and mental agony and, as such, defendant was in a position to dominate the will of the plaintiff. On these bases, it was held by the learned trial Court that gift deed was a result of fraud, undue influence and misrepresentation exercised by the defendant upon the plaintiff. It further held that gift deed Ext. DW4/A could not ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 9 be said to be valid and genuine document and the same deserved to be declared null and void.
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10. Learned trial Court forth held that the second plea of the plaintiff that the alleged gift deed was a conditional gift deed and breach of conditions so contemplated therein warranted revocation of the same demonstrated that the said gift deed was revocable. Learned of trial Court held that as the plaintiff was getting pension and had received all the service benefits after the death of her husband, it rt could be sufficient to conclude that she had sufficient means to maintain herself and to bear the expenses of the education and marriages of her daughters. On these bases, it was further held by the learned trial Court that defendant had not borne the expenses of marriages of the daughters of the plaintiff and this alongwith statement of plaintiff established that defendant had committed breach of condition incorporated in the gift deed and hence, gift deed was revocable on the part of the plaintiff. On these basis, learned trial Court decreed the suit.
11. Feeling aggrieved by the judgment and decree so passed by the learned trial Court, defendant filed an appeal.
12. In appeal, learned Appellate Court vide its judgment dated 07.03.2011 allowed the same and reversed the judgment and ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 10 decree passed by the learned trial Court. While allowing the appeal of the defendant, it was held by the learned Appellate Court that there .
was nothing to suspect the genuineness of gift deed Ext. DW4/A which seemed to be voluntarily executed by the plaintiff in favour of defendant in lieu of services rendered to her by the defendant. It was further held by the learned Appellate Court that no presumption of of undue influence can arise simply because of the fact that parties were related. Learned Appellate Court held that plaintiff became widow in rt the year 1976 and she was having three daughters. It also held that entire family was to be looked after and brought up and for that, she relied upon defendant being her husband's younger brother, who maintained her and her daughters, which was evident from the Money Order coupons placed on record. Learned Appellate Court held that execution of gift deed Ext. DW4/A in the year 1992 in favour of defendant was challenged by plaintiff in the year 2005, after a long time probably to get out of the gift deed and to give the property to her daughters. Learned Appellate Court held that suit appeared to have been filed by Rattan Chand, son-in-law of plaintiff, which was evident from the statement of PW3 Pohlo Ram, who stated that suit in fact was filed by Rattan Chand. On these bases, it was held by learned Appellate Court that it was clear that suit was filed by plaintiff at the ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 11 behest of her son-in-law Rattan Chand to take a somersault so that the property could go to her daughters. Learned Appellate Court also held .
that the factum of possession of suit land having been delivered to the defendant was also admitted by PW3 Pohlo Ram. Learned Appellate Court also held that whereas gift deed was executed on 05.03.1992 and mutation Ext. CA thereof was sanctioned on 02.04.1992 and it of was recited in the order of the Assistant Collector 2nd Grade that Smt. Sunehro Devi herself appeared before the Collector in the presence of rt Pradhan of local Panchayat and got the mutation attested and sanctioned and as this was a public document, therefore, whatever was written on the same was per se admissible. It was also held by the learned Appellate Court that this also demonstrated that plaintiff was aware about the gift deed at least on 02.04.1992, however, the suit was not filed by her within three years thereafter as provided under Article 59 of the Limitation Act. Learned Appellate Court also held that recital of gift deed Ext. DW4/A reflected that Prakash Chand was looking after and serving her (plaintiff) for a long time and since she was happy with this, she accordingly executed the gift deed in his favour. Learned Appellate Court also held that though plaintiff was making a case that defendant had not maintained her but there were a number of Money Order coupon/receipts Ext.DW3/1 to Ext. DW3/28 ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 12 on record, perusal of which demonstrated that defendant was sending Money Orders to plaintiff regularly over a long span of period. On .
these bases, it was concluded by the learned Appellate Court that it was rightly recited in the gift deed that defendant was maintaining the plaintiff regularly, and in lieu of such services, she executed the gift deed in his favour. Learned Appellate Court also held that plaintiff of had gone to the Tehsil office for getting the gift deed executed, which was evident from her deposition whereby she stated that she was kept rt standing on road side which fact was not however correct as there was endorsement made on the gift deed by the Sub Registrar concerned which was duly thumb marked by the plaintiff herself. Learned Appellate Court also held that plaintiff herself had also appeared before the Assistant Collector 2nd Grade at the time of attestation of mutation and as such, it could not be said to be a result of fraud or mis-representation. On these bases learned Appellate Court allowed the appeal filed by the defendant and reversed the judgment passed by the Court of Civil Judge (Jr. Divn.), Barsar.
13. Feeling aggrieved by the said judgment and decree passed by learned Appellate Court, plaintiff/appellant has filed this appeal, which was admitted on 09.07.2012, on the following substantial questions of law.
::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 13"1. Whether the findings of the lower appellate Court regarding issue No. 4 as whether the suit is barred by limitation are wrong and against the settled .
principles of law?
2. Whether the findings of the lower appellate Court regarding issue No. 1 are perverse to the evidence on record and as a result of misrepresentation and mis interpretation of the contents of documents on record specially Ext. CA and Ext. DW-4/A?"
of
14. I have heard learned counsel for the parties and also gone through the records of the case as well as the judgments and decrees rt passed by both the learned Courts below.
15. It is not a disputed fact that plaintiff and defendant are closely related to each other and defendant in fact is 'devar' of the plaintiff i.e. younger brother of her husband. It is also a matter of record that husband of the plaintiff died in the year 1976 leaving behind his widow i.e. plaintiff and three daughters. The contention of the defendant is that the gift deed was in fact executed by the plaintiff in his favour in lieu of services rendered by him to the plaintiff and her three daughters which also included monetary assistance rendered by him. To the said stand taken by the defendant there is denial simplicitor on behalf of the plaintiff. However, as has also been held by the learned Appellate Court, defendant placed on record documentary evidence in addition to the ocular evidence led by him ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 14 which demonstrates that monetary assistance from time to time was in fact extended by him to the plaintiff. Money order receipts Ext.
.
DW3/1 to Ext. DW3/28 clearly demonstrates that the defendant was monetarily assisting the plaintiff. Incidentally, death of the husband of the plaintiff took place in the year 1976 and the gift deed was executed on 05.03.1992, whereas the civil suit was filed only in the of year 2005. The justification which has been put forth by the plaintiff in this regard that she was not aware about the gift deed till July, 2004 rt is devoid of merit as the same has not been substantiated by the plaintiff by placing on record any convincing evidence. On the other hand, PW3 Pohlo Ram in his cross examination has stated that the case was filed by Ratnu who happens to be the son-in-law of the plaintiff. In his cross examination, he stated that the husband of the plaintiff had died about four years back which is factually incorrect because husband of the plaintiff died in the year 1976 even as per the plaintiff. Testimony of this witness of the plaintiff gives credence to the contention of the defendant that in fact the suit was filed at the behest of son-in-law of the plaintiff which in itself explains as to why there is inordinate delay in filing the suit. Even otherwise, it is a matter of record that gift deed after its execution was duly registered and the plaintiff after the execution of the sale deed got the same ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 15 registered with the Sub Registrar concerned wherein also the contents of the gift deed were read over and explained to her. It is also a matter .
of record that at the time of attestation of mutation vide Ext. CA which was sanctioned on 02.04.1992, as it stands recited in the order of Assistant Collector 2nd Grade, plaintiff had herself appeared before the Collector in the presence of Pradhan of the local Panchayat and of had got mutation attested and sanctioned. In light of such evidence produced on record by the defendant, it cannot be said that either the rt gift deed was procured by fraud or misrepresentation from the plaintiff by the defendant as has been alleged by the plaintiff or the judgment and decree passed by the learned Appellate Court whereby it reversed the findings of the learned trial Court is a result of either misreading or mis-appreciation of gift deed Ext. DW4/A or mutation Ext. CA. During the course of arguments, even otherwise, learned could for the appellant could not point out as to what was the perversity with the findings returned by the learned Appellate Court as the findings so returned by the learned Appellate Court were duly substantiated by the evidence placed on record by the defendant.
16. Gift deed Ext. DW4/A was executed on 05.03.1992. It is not disputed that limitation for filing suit to have had the said gift deed set aside on the ground that the same was a result of fraud and ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 16 mis-representation was three years as provided under Article 59 of the Limitation Act, 1963. As per plaintiff, she was not aware as to what .
documents were executed when she was taken to the office of Sub Registrar, Barsar by the defendant in the year 1992. As per averments made in the plaint, plaintiff came to know about the factum of her having been defrauded by the defendant in the first week of July, of 2004, when settlement department demarcated and measured the land and told her that actual owner of the suit land was defendant.
rt According to her, inquires made by her thereafter revealed to her the date of execution of gift deed. In other words, as per the plaintiff, before July 2004, she was not aware that any gift deed was got executed from her by the defendant in his favour fraudulently. Thumb impression of plaintiff over the gift deed Ext. DW-4/A is not disputed by her though she tried to justify this by stating that thumb impression was got affixed from her for some other purpose. The attestation of mutation Ext. CA in favour of defendant was done on 02.04.1992.As per this document, the attestation of mutation was done in favour of defendant in the present of plaintiff. Even if this Court believes the version of the plaintiff that defendant allured her to go to Tehsil office to execute certain documents to save her estate after her demise and under this garb, he got executed gift deed in his favour and procured ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 17 her thumb impression on the same, then the contention of the plaintiff to the effect that in the alternative there was a clause in the gift deed .
which contemplated that if the defendant failed to maintain and look after the plaintiff, the gift deed was to be revoked automatically falsifies the earlier stand of the plaintiff that the will was a result of fraud and misrepresentation. In my considered view, plaintiff cannot of in the same breath say that the alleged gift deed was a result of fraud and misrepresentation and then also bring in the element of gift deed rt being conditional one. The only inference which could be drawn from the said stand of plaintiff is this that the plaintiff was aware of the gift deed so executed by her in favour of defendant but now in order to resile from the gift deed, she was coming with concocted versions.
Besides this, the plaintiff has not been able to place on record any evidence from which it could be inferred that the cause of action actually accrued in her favour in July, 2004 and before that, she was in fact not aware about any gift deed having been got executed from her by defendant in his favour fraudulently and by misrepresentation.
Therefore, in view of above discussion, it cannot be said that the suit filed by the plaintiff was within limitation and the findings returned by the learned first Appellate Court that the suit was barred by limitation are correct findings and there is no infirmity or perversity ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP 18 with the findings so returned by the learned Appellate Court as the same are duly substantiated from the record.
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17. Therefore, in view of above discussion, I do not find any merit in the present appeal. Substantial questions of law are answered accordingly.
In view of above discussion, this appeal is dismissed.
of Judgment and decree passed by the learned first Appellate Court in Civil Appeal No. 142 of 2008, dated 07.03.2011 are affirmed. No rt order as to costs. Pending miscellaneous application(s), if any, also stands disposed of.
(Ajay Mohan Goel) Judge 16th December, 2016.
(narender) ::: Downloaded on - 15/04/2017 21:46:11 :::HCHP