Delhi District Court
Sh. Rajinder Kumar Dotania vs Sh. Davender Kumar Dotania on 28 January, 2021
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDITIONAL DISTRICT JUDGE-04, CENTRAL, TIS
HAZARI COURTS, DELHI
CS No. 620434/16 CNR No. DLCT01-0145232016
SH. RAJINDER KUMAR DOTANIA
S/O LATE MOHAN LAL DOTANIA
R/O 42/4855, REGHAR PURA
KAROL BAGH, NEW DELHI-110005 ......Plaintiff
Versus
1. SH. DAVENDER KUMAR DOTANIA
S/O LATE MOHAN LAL DOTANIA
R/O 42/4855, REGHAR PURA
KAROL BAGH, NEW DELHI-110005
2. SUB-REGISTRAR-III
AT ASAF ALI ROAD
NEW DELHI ......Defendants
Date of Institution : 20.05.2014
Date of Judgment reserved on : 28.01.2021
Date of Judgment : 28.01.2021
JUDGMENT
CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 1 of 52 SUIT FOR CANCELLATION OF GIFT DEED DATED 09.04.2012 REGISTERED AS DOCUMENT NO. 2913 IN BOOK NO. 1, VOL. NO. 14622 ON PAGES 90 TO 96 ON DATED 10.04.2012 IN THE OFFICE OF DEFENDANT NO.
2 WITH THE RELIEF OF DECLARATION AND PERMANENT INJUNCTION BRIEF FACTS AND REASONS FOR DECISION :-
1. The plaintiff has filed the present suit for cancellation of gift deed dated 09.04.2012 with the relief of declaration and permanent injunction. Plaintiff has submitted that defendant no. 1 is his brother who is staying in joint family. The father of plaintiff has expired on 15.12.2011 leaving behind the registered Will dated 04.11.2011 and their mother Smt. Ram Piari Dotania has expired on 17.02.2013. The mother of parties had left behind the registered Will dated 04.11.2011. The present suit is concerned with cancellation of gift deed dated 09.04.2012 allegedly executed by the mother who was absolute owner of House in property no.
77/5619, Regharpura, Karol Bagh, New Delhi. This property is self acquired property of the mother which was acquired in the year 1955-56 by her "Istridhan" and monetary assistance from the father CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 2 of 52 of the parties to the suit. The property consists of four floors and area measuring 75 sq. yds. of land. Plaintiff is in possession of ground and first floor even before the operation of the Will. The third floor is with Ms. Sarita Dotania, the "Bhabhi" of the plaintiff. Ms. Sarita had also filed CS (OS) no. 604/2012 titled as Sarita Dotania & Ors. v. Ram Piari Dotania & Ors. in which the plaintiff, defendant no. 1 are defendant no. 2, 3 and their mother Smt. Ram Piari Dotania is defendant no. 1. This suit was filed in January 2012. In the said suit Ms. Meena Kumari Sarsunia is also one of the defendant. The defendant filed joint written statement on 18.09.2012 in the said suit pending before the Hon'ble High Court of Delhi. Smt. Ram Piari Dotania has categorically stated in preliminary objection no. 8 that she is exclusive owner of the suit property. According to the plaintiff the mother had executed the registered gift deed then she could not have said in the written statement after execution of gift deed that she was exclusive owner of the suit property. In the said suit the LR were brought on record. The Will in respect of the suit property was also brought on record. Vide order dated 14.09.2012 Hon'ble High Court of Delhi had directed to maintain status quo with regard to title and possession in respect of suit property in the said civil suit. On 09.05.2014 the plaintiff found some of his luggage missing and on inquiry from CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 3 of 52 defendant no. 1 he disclosed about registered gift deed dated 09.04.2012. The alleged gift deed is forged and fabricated as mother could not have executed the said gift deed in favour of defendant no. 1 as she had much love and affection for the plaintiff who was looking after her during lifetime of the parents. Defendant no. 1 till 09.05.2014 never disclosed about gift deed. The defendant no. 1 herein and defendant no. 3 in the said suit had also not disclosed before Hon'ble High Court of Delhi in written statement about any gift deed. This gift deed does not bear signature of Smt. Ram Piari Dotania who used to sign in Hindi language. It is submitted that the mother of the parties did not understood English language. The written statement and vakalatnama before Hon'ble High Court of Delhi was filed by the mother in Hindi language only. Defendant no. 1 is running a medical store in the name and style of Umesh Chemist Store. It is alleged that he might have drugged her mother and might have executed the alleged gift deed fraudulently. The plaintiff had also lodged a police complaint dated 11.05.2014 at PS Prashad Nagar and a complaint was also lodged with Sub-Registrar concerned on 13.05.2014. Hence plaintiff has prayed for cancellation of gift deed with permanent injunction against the defendants and their agents not to dispossess them from the suit property without due process of law and further not to CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 4 of 52 create any encumbrance in the suit property. Cost of the suit is also prayed by the plaintiff.
2. In the WS filed by the defendant no. 1 it is submitted that suit of the plaintiff is not correct and present suit is filed only to harass the defendant no. 1. Defendant no. 1 has also filed police complaint against the plaintiff for taking forceful possession of the suit property. It is denied that the parties were residing as joint family. It is denied that plaintiff used to look after the affairs of the family. It is stated by the defendant that gift deed dated 09.04.2012 was disclosed by defendant no. 1 and mother Smt. Ram Piari Dotania to the plaintiff to which plaintiff did not have objection. It is admitted that suit property was so acquired property by the mother as pleaded by the plaintiff. The area and number of floors in the said property are admitted. The date of death of parents is admitted. It is stated by the defendant that third floor is in exclusive possession of defendant no. 1 and possession of plaintiff at ground and first floor is denied. It is admitted that the luggage of the plaintiff is lying there.
3. It is submitted that plaintiff has got prepared the written statement through ld. Counsel of which defendant was not aware CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 5 of 52 that plaintiff has not mentioned about the execution of gift deed. Defendant no. 1 has signed the written statement in good faith. It is admitted that LR of Ms. Ram Piari Dotania was brought on record in the said suit. It is submitted that copy of gift deed was handed over to the plaintiff by defendant no. 1 and his mother which had to be filed alongwith written statement in the suit which was not placed on record by the plaintiff. The gift deed was executed after execution of the Will and therefore the gift deed will prevail. The gift deed was executed out of love and affection in favour of defendant no. 1. Defendant no. 1 and his mother was not aware about the procedure of the Court. The defendant no. 1 had signed the written statement without going into contents having faith on plaintiff. It is submitted that mother could have put thumb impression instead of signature on the gift deed. It is submitted that the suit of the plaintiff is false and the same be dismissed with costs.
4. Replication is filed by the plaintiff in which plaintiff has reaffirmed the averments made in the plaint and denied the averments of the defendant no. 1.
5. On the pleadings of the parties and averments made CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 6 of 52 following issues are framed in the suit on 08.12.2014:
1. Whether the plaintiff is entitled to decree of cancellation of the gift deed dated 09.04.2012 in respect of property no. 77/5619, Regharpura, Karol Bagh, New Delhi, as prayed for? OPP
2. Whether the plaintiff is entitled to decree of permanent injunctions against defendants as prayed for? OPP
3. Whether the suit is not maintainable for want of cause of action? OPD
4. Relief.
6. Plaintiff/Sh. Rajinder Kumar Dotania has got examined himself as PW-1, PW-2 is Sh. Surender Kumar who has proved admission of Will and PE was closed on 11.07.2017. Defendant has got examined DW-1 as the sole witness in defence and DE was closed on 24.04.2018.
CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 7 of 527. Parties are heard through video conference and record perused.
8. The issue-wise findings are as follow:-
9. ISSUE NO. 11. Whether the plaintiff is entitled to decree of cancellation of the gift deed dated 09.04.2012 in respect of property no. 77/5619, Regharpura, Karol Bagh, New Delhi, as prayed for? OPP
9.1 The case of the plaintiff is that the gift deed dated 09.04.2012 be cancelled because it is forged and fabricated prepared by defendant no. 1 to malafidely grab the share of the plaintiff. It is so stated at the para no. 7 of the plaint. The fact of alleged forgery and fabrication are recorded mainly in para no. 6 of the plaint. Section 17 of Indian Contract Act, 1872 defines fraud and Section 18 of Indian Contract Act, 1872 defines misrepresentation. The principle difference between fraud and misrepresentation is that in case of fraud the person making the suggestion does not believe in its truth. In case of misrepresentation CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 8 of 52 the person making the suggestion believe in the truth of the statement. In both cases there is misstatement of facts which misleads the other parties.
9.1.1 It is submitted by the plaintiff that in the cross- examination of DW-1 the Will dated 04.11.2011 is admitted between the parties. The father of the parties had expired on 15.12.2011 and mother had expired on 17.02.2013. The third floor of the property no. 77/5619, Regharpura, Karol Bagh, New Delhi is in possession of their sister-in-law/Ms. Sarita Dotania who had filed a suit for partition titled Sarita Dotania v. Ram Piari and Ors. before Hon'ble High Court of Delhi. At that time mother of both the parties was also alive. In the said suit the plaintiff herein, the defendant herein, the mother of the parties and their sister Ms. Meena Sarsonia were parties and all of them had filed a joint written statement Ex.PW1/3. Ex.PW1/5 and Ex.PW1/6 is affidavit to the written statement. Ex.PW1/6 is affidavit of defendant no. 1 in the present suit. It is deposed by PW-1 that joint written statement Ex.PW1/3 was got prepared by all the defendants. Defendant suggests that it is plaintiff only who got prepared the said written statement. However DW-1 in his cross-examination has deposed voluntarily that he had signed these documents without knowing CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 9 of 52 the contents. It was signed on saying of his brother who is plaintiff herein as plaintiff was the only educated person in the house. The mother was illiterate. Defendant no. 1 is 10th class passed and he does not know English language. The affidavit Ex.PW1/6 is perused which is duly attested by Oath Commissioner at Tis Hazari Courts, Delhi on 25.09.2012 who are identified by his then Counsel Sh. R.K. Saini. Sh. R.K. Saini is ld. Counsel for the plaintiff herein against the defendant no. 1. Sh. R.K. Saini was appearing for the same defendant no. 1. However in Ex.PW1/6 the defendant no. 1 has taken oath before Oath Commissioner as to correctness of his affidavit. He has not rebutted the presumption of due execution of this affidavit and therefore it cannot be said that defendant no. 1 did not understood the content of written statement filed by him before Hon'ble High Court of Delhi. Similarly their mother had filed written statement before Hon'ble High Court of Delhi and executed affidavit Ex.PW1/4. Hence the plea of defendant no. 1 that he signed the said written statement without knowing its contents cannot be sustained and stands rejected.
9.2 The written statement filed before the Hon'ble High Court of Delhi Ex.PW1/3 does not find mention anywhere about the alleged gift deed dated 09.04.2012 though the written statement was CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 10 of 52 attested and signed on 25.09.2012 as per affidavit filed alongwith. Hence this creates suspicion of existence of any gift deed on 09.04.2012 which otherwise could have been found mentioned in Ex.PW1/3. The Will executed by Sh. Mohan Lal Dotania dated 04.11.2011 is relied upon by all the parties in the present suit before Hon'ble High Court of Delhi. Had there been any such gift then it would have been submitted by any of the defendants.
9.3 In view of such suspicion on existence of such gift deed ld. Counsel for defendant had relied on fact of registration of the said Will before Sub-Registrar, Delhi. The Will of Ms. Ram Piari is Ex.PW1/2 dated 04.11.2011 and registered on the same date. The gift deed is dated 09.04.2012 allegedly executed by Ms. Ram Piari in favour of defendant no. 1. The gift deed is Mark A on record. It is registered before Sub-Registrar, Delhi on 09.04.2012. The photograph of Ms. Ram Piari mother of both the parties is at page no. 6 of the gift deed digitally taken at the office of Sub-Registrar on 10.04.2012 at 10.33 AM on Tuesday. The thumb impression on the gift deed is mentioned to have been taken in presence of Sub- Registrar-III. However the date is mentioned in the body of first para of gift deed 09.04.2012. Hence the date of execution of gift deed and date of registration of gift deed are different. The CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 11 of 52 photograph of Ms. Ram Piari proves that she had visited the office of Sub-Registrar on 10.04.2012. However this is not sufficient to prove due execution of gift deed which has to be proved as per Section 63 to 69 of Indian Evidence Act, 1872. It is settled law that Sub-Registrar is not witness to the execution of Will. The relevant citation which is also relied upon by the defendant is reproduced with relevant para hereasunder:
In case titled Patel Ramanbhai Mathurbhai vs Govindbhai Chhotabhai Patel on 5 September, 2018 C/SA/211/2018 wherein it was held by Hon'ble High Court of Gujarat at Ahmedabad in R/Second Appeal No. 211 of 2018 as under.:
75 The Supreme Court in the case of Prem Singh and others vs. Birbal and others reported in (2006) 5 SCC 353 observed in para 27 as under:
"There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption."
76 Section 60 of the Registration Act, 1908 states:
"(1) After such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word 'registered' together with the CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 12 of 52 number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement referred to in Sec. 59 have occurred as therein mentioned."
The Privy Council said in Gangamoy Debi vs. Troilukhya Nath, (1906) 33 Ind App 60 = (ILR 33 Cal
537) (PC) "The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order."
77 On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara vs. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution.
78 In regard to a document executed by a pardanashin lady, a Division Bench of the Allahabad High Court in Kulsummunnisa vs. Ahmadi Begum (AIR 1972 All 219) said that the endorsement of the SubRegistrar on a sale deed to the effect that the pardanashin lady the executant of the document was identified by inspection from behind pardah and that after hearing and understanding the nature and contents of CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 13 of 52 the deed she admitted the execution of the deed, is admissible in evidence. An earlier decision of the Court in Misri Lal v. Bhagwati Prasad (AIR 1955 All 573) is referred to therein.
79 Certain other courts have taken the view that a certificate of registration given under Section 60 (2) of the Registration Act is not by itself sufficient to prove due execution of a document as required by Sec. 67 of the Evidence Act and that the effect of registration is not to prove execution but only to prove an admission by the executant to the registration in solemn circumstances see (1) Ramkrishan v. Mohd. Kasim, AIR 1973 Bom 242.
(2) Ramanna v. Sambamurthy, AIR 1961 Andh Pra 361.
(3) Bhutkani Nath v. Kamaleswari, AIR 1972 Assam and Naga 15. (4) Dharm Das v. Kashi Nath, AIR 1959 Cal 243.
80 In Indernath Modi v. Nandram (AIR 1957 Raj 231), Chief Justice Wanchoo (as he then was) said:
"Among the endorsements referred to in Sec. 59, is the endorsement under Section 58. . At the same time it may be remembered that this mode of proof cannot take the place of proof as provided by Section 67 of the Evidence Act which lays down that if a document is alleged to be signed or to have been written wholly or in part, by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 14 of 52
81 The question has been considered in depth by Justice Raman Nair of the Kerala High Court (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947): "I regard the Privy Council decision in Gangamoyi Debi v. Troiluckhya Nath Chowdary, (1906) ILR 33 Cal 537 (PC) Md. Ihtishan Ali v. Jamna Prasad (AIR 1922 PC 56) and Gopal Das v. Sri Thakurji (AIR 1943 PC
83) see also Vishvanath v. Rahibai (AIR 1931 Bom
105), Pandappa v. Shivalingappa (AIR 1946 Bom 193) and Kalu v. Bapurao (AIR 1950 Nag 6) as authority for the proposition that, in cases where Section 68 of the Evidence Act has no application the certificate of registration in the light of the presumption in Sec. 114, Illustration (e) of the Evidence Act is evidence of execution and can, in fit cases, be accepted as proof thereof and with the contrary view expressed in Salimatul Fatima v. Koyalashpati Narain Singh ((1890) ILR 17 Cal 903), Maruti Balaji v. Dattu (AIR 1923 Bom 253 (2)) and Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nag 84) neither what is said in the Privy Council decisions nor the wording of Sec. 60 (2) of the Registration Act lends the least support to the statement in the last mentioned case that the certificate is only corroborative and not substantive evidence; the section says that the certificate is admissible for proving certain facts which can only mean that it is substantive evidence regarding those facts I must express my respectful dissent. To the argument noticed in Ara Begam v. Deputy Commr. Gonda (AIR 1941 Oudh 529 at p. 548), Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nag 84 at p. 85) and Ramanna v. Sambamoorthi (AIR 1961 Andh Pra 361 at p. 369) that if the certificate of registration were to be CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 15 of 52 accepted as proof of execution, a party who is required to prove a document would, if it is registered, be relieved of the necessity of examining any witnesses to prove it and could rest solely on the certificate, thus opening the way to fraud and fabrication, the answer is obvious. It is that the Court is not bound to accept the certificate as sufficient proof and, where better evidence is available, can insist on better evidence, drawing the presumption in Illustration (g) of Section 114 of the Evidence Act against the party who withholds this better evidence.
xx xx xx With great respect I think that the attempt made in Indernath Modi v. Nandram (AIR 1957 Raj
231) to distinguish the Privy Council cases on the ground that those cases apply only, where it is not possible to take recourse to the method provided in Section 67 because of the fact that the executant and the marginal witnesses are either dead or cannot be found, and that it is only in such cases that recourse can be had 'to the presumption under Section 60 (2) of the Registration Act' is vitiated by the assumption that Section 67 of the Evidence Act prescribes a mode of proof and requires the executant or the "marginal witnesses" to be examined. Section 67 says nothing of the kind. It only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of sub section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded."
CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 16 of 5282 The Privy Council in the case of Satish Chandra Chatterji and C/SA/211/2018 JUDGMENT others vs. Kumar Satish Kantha Roy reported in AIR 1923 Privy Council 73 has observed as under:
"Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who made them proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused or fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so many a clever and dexterous knave would escape."
9.4 It is submitted by the plaintiff that their mother Ms. Ram Piari used to make signature and did not use to put thumb impression in execution of documents since the gift deed executed bears the thumb impression then it has to be seen that whether Ms. Ram Piari used to put signature or thumb impression in usual course of nature. In the Will Ex.PW1/2 dated 04.11.2011 at all pages late Ms. Ram Piari had signed in Hindi language. In the written statement filed Ex.PW1/3 Ms. Ram Piari has signed in Hindi language similarly Ms. Ram Piari has signed in Hindi language in Ex.PW1/9 which is affidavit to interim injunction application of Rules 1&2 of Order CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 17 of 52 XXXIX CPC. Ex.PW1/5 is affidavit to the written statement which is again signed by Ms. Ram Piari in Hindi language. The defendant relies only on gift deed dated 09.04.2012 that Ms. Ram Piari used to put her thumb impression. However this document is self is not proved by the defendant by calling witness to the gift deed to prove that such thumb impression were put by free will of Ms. Ram Piari. The defendants have failed to bring any more witness on record to show that their mother used to put thumb impression and the thumb impression on the Will are her correct execution of alleged gift deed. Further it is admitted by DW-1 in cross-examination at page 3 as correct that in the gift deed Ex.DW1/1 in the site plan annexed mention only ground, first and second floor and not about the third floor. Therefore by virtue of said gift deed it cannot be believed that Ms. Ram Piari had intended to disposed off the suit property. In the normal course of human conduct a person defines right in each portion of the property which is subject matter of the deed. This is not shown in the present case and therefore the gift deed has become more suspicious.
9.4.1 The burden of proof is hence on the defendant to show that he had given due intimation to the parties about due execution of the gift deed who were in occupation/possession of the suit CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 18 of 52 property. The mother was in possession of ground floor. It is admitted as correct by DW-1 that on 09.05.2014 and 11.05.2014 there had been quarrel between him and the plaintiff. The case of the plaintiff is that only on 09.05.2014 the defendant had told him about the said gift deed. However the suspicious circumstances are to be dispelled by the defendant only. The law as to fiduciary relationship is laid down as under.:
The Hon'ble Supreme Court of India in case titled Sri Marcel Martins vs M. Printer & Ors on 27 April, 2012 in Civil Appeal No.6645 of 2003 has held as under.:
(16) The term "Fiduciary" has been explained by Corpus Juris Secundum as under:
"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from the civil, or Roman Law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.
The word 'fiduciary', as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 19 of 52 it and the scrupulous good faith and condor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."
17. Words and Phrases, Permanent Edition (Vol. 16-A p.
41) defines "Fiducial Relation" as under:
"There is a technical distinction between a 'fiducial relation' which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and 'confidential relation' which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised.
Generally, the term 'fiduciary' applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, a well as technical fiduciary relations."
18. Black's Law Dictionary (7th Edn. Page 640) defines "fiduciary relationship" thus:
"Fiduciary relationship- A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships- such as trustee-beneficiary, guardian-ward, agent-principal, and attorney- client - require the highest duty of care. Fiduciary relationship usually arise in one of CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 20 of 52 four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person ha a duty to act for give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a clinet or a stockbroker and a customer."
19. Stroud's Judicial Dictionary explains the expression "fiduciary capacity" as under:
"Fiduciary Capacity - An administrator who had received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it "in a fiduciary capacity" within Debtors Act 1869 so, of the debt due from an executor who is indebted to his testator's estate which he is able to pay but will not, so of moneys in the hands of a receiver, or agent, or Manager, or moneys due to an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or moneys which in the compromise of an action have been ordered to be held on certain trusts or partnership moneys received by a partner."
20. Bouvier's Law Dictionary defines "fiduciary capacity"
as under:
"What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation of society. Medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 21 of 52 officially collected, one who receives a note or other security for collection. In the following cases debt has been held not a fiduciary one; a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."
21. We may at this stage refer to a recent decision of this Court in Central Board of Secondary Education and Anr. v. Adiya Bandopadhyay and Ors. (2011) 8 SCC 497, where Ravindeeran, J. speaking for the Court in that case explained the term 'fiduciary' and 'fiduciary relationship' in the following words:
"39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term "fiduciary relationship" is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party."
22. It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 22 of 52 the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.
23. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the Court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-à- vis the plaintiffs-respondents.
9.5 The burden of proof of due execution of Will shifts on the defendant in view of suspicion discussed above. Hence the signature of Ms. Ram Piari must have been proved by the defendant u/Sec. 67 of Indian Evidence Act, 1872. No such evidence is led by the defendant. The gift deed is a document which transfers immovable property in the present suit u/Sec. 123 of Transfer of Property Act, 1882 the gift deed must be attested atleast by two witness. Even otherwise the defendant has put suggestion to plaintiff in cross-examination of PW-1 dated 11.05.2017 at first page and plaintiff it as correct that their mother was illiterate who could read, write and under stand the English language. The alleged gift deed which is Mark A on record is in English language.
CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 23 of 52Therefore the burden of proof in respect of due execution of gift deed is on the defendant that late Ms. Ram Piari has understood the contents of the gift deed before its execution. The defendant is the beneficiary of the gift deed therefore the burden of proof lies heavily on the defendant. The relevant citation is reproduced hereasunder:
In the case titled Anil Rishi Vs. Gurbaksh Singh from Hon'ble Supreme Court of India in Appeal (Civil) No.2413/2006 relevant portion of which is reproduced here as under :-
"xxxxxxxxxxxxxxx In the impugned judgment, the High Court proceeded on the basis that although generally it is for the plaintiff to prove such fraud, undue influence or misrepresentation, but when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position.
The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 24 of 52
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance. Strong reliance has been placed by the High Court in the decision of this Court in Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., [AIR 2003 SC 4351]. In that case, the question of burden of proof was gone into after the parties had adduced evidence. It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence. The question as regards oblique motive in execution of the deed of settlement was gone into by the Court. The executant was more than 100 years of age at the time of alleged registration of the deed in CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 25 of 52 question. He was paralytic and furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression. It was on the aforementioned facts, this Court opined:-
"12 The onus to prove the validity of the deed of settlement was on the defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position"
This Court in arriving at the aforementioned findings referred to Section 111 of the Indian Evidence Act which is in the following terms:-
CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 26 of 52"Sec. 111. Proof of good faith in transactions where one party is in relation of active confidence. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence."
But before such a finding is arrived at, the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established. Section 111 of the Evidence Act will apply when the bonafides of a transaction is in question but not when the real nature thereof is in question. The words `active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant- appellant, the burden would lie on him as he had alleged fraud. The trial Court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant.
The learned trial Judge has misdirected himself in proceeding on the premise "it is always difficult to prove the same in negative a person/party in the suit." Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned Trial Judge, therefore, posed unto himself a wrong question and CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 27 of 52 arrived at a wrong answer. The High Court also, in our considered view, committed a serious error of law in misreading and misinterpreting Section 101 of the Indian Evidence Act. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant, would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same.
There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the following terms :
"29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 28 of 52 v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
9.6 The defendant was in a fiduciary relationship with his mother late Ms. Ram Piari had stayed till her last with defendant no. 1 only. The defendant no. 1 was in a dominant position in respect of his illiterate mother Ms. Ram Piari. Ms. Ram Piari was defendant no. 1 in respect of execution of alleged gift deed. Therefore the onus of proof of valid gift deed lies on the defendant. The defendant has not produced any witness in respect of due execution of said gift deed which was incumbent upon him to prove atleast by one of the attesting witness under Section 68 of Indian Evidence Act, 1872. Hence the defendant no. 1 has failed to prove the due execution of said Will. In absence of due execution of above Will it cannot be said that it was validly executed. The defendant was required to prove the circumstance under which the same was CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 29 of 52 executed and that why his mother had to suddenly changed her decision already made in the Will. Defendant has miserable failed to prove the same.
9.7 It is case of the defendant that it is for the plaintiff to prove the fraud. The plaintiff has to satisfy the necessary ingredients of fraud which are reproduced here as under :-
It was held in case titled Mahboob Khan And Ors. vs Hakim Abdul Rahim on 30 March, 1964 = AIR 1964 Raj 250 as under.:
6. Undue influence is defined in Section 16 of the Indian Contract Act. In the case of Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65 it was pointed out by the Judicial Committee that:
"It is a mistake to treat undue influence as having been es- tablished by a proof of the relations of the parties having 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. Up to that point 'influence' alone has been made out. Such influence may be used wisely, ju- diciously and helpfully. But whether by the Law of India or the Law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'. It must be established that the person in a po- sition of domination has used that position to obtain unfair advantage for himself, and 'so to cause injury to the person relying upon his authority or aid. And where the relation of influence, as above set forth, has been established and the second thing is also made clear, viz., that the bargain is CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 30 of 52 with the 'influencer' and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of es- tablishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent".Again in the case of Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60 it was stated by the Judicial Committee that:
"By Sub-sectiion (3) of Section 16 three matters are dealt with. In the first place the relations between the parties to each other must be such that one is in a position to domi- nate the will of the other. Once that position is substanti- ated the second stage has been reached, viz., the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. The burden of proving that the contract was not induced by undue influence is to He upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. Even though a bargain, had been unconscionable a remedy un- der the Contract Act does not come into view until the ini- tial fact of a position to dominate the will has been estab- lished. Once that fact is established, then the uncon- scionable nature of the bargain and the burden of proof on the issue of undue influence come into operation."
As stated earlier in the instant case Kalu Khan before the execution of the gift deed was wholly dependant upon the respondent for his maintenance. Due to Kalu Khan's old age, illiteracy, his financial stringency and his strained re- lationd with his son, the respondent on account of closer relationship was surely in a position to dominate the will CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 31 of 52 of Kalu Khan. Kalu Khan had three daughters of marriage- able age at that time and had no other source of income. By the gift deed the entire property which he possessed was given away to the respondent. If the principles laid down by the Judicial Committee in the above two cases are applied to the facts of his case it was for the respondent to show that the gift was not made by undue influence (Section 16(3) Indian Contract Act and section in Evidence Act). This aspect of the case was completely overlooked by the courts below, though the trial court remarked that:
"The defendant was a close relation of the plaintiff. He is admittedly his grand son, though not a real one. He relied on help of the defendant, and the latter had to some extent obliged him. Thus the age and ignorance of Kalu Khan, his acute financial problems, his separation from his son after some strained relations with him, close relationship with the defendant and his obligations all continued created some special fiduciary relationship between the donor and the donee, which may to some extent shift the burden on the defendant. In any case these are the circumstances in the background of which we have to examine the evidence adduced by either party."
The court further remarked that:
"There is another aspect of the case. Kalu Khan was very old, earning nothing and having no property to save the one in dispute. He had three daughters to be maintained and married by him. Does it appeal to ordinary common sense that he would have willingly made a free gift of his only house or rather the only property to the defendant leaving himself entirely to his fate.'' The facts mentioned above found by the trial court clearly make out a case of undue influence ay defined in Section 16 of the Indian Contract Act and the burden of proving that such contract was not induced by undue influence should have been on CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 32 of 52 the defendant. But the trial court instead of holding that the gift, in question was induced by undue influence held that fraud was established. As observed by the 'Privy Council in Someshwar Dutt v. Tribhawan Dutt, AIR 1934 PC 130 that:
"Acts of undue influence must range themselves under one or other of these heads -- coercion or fraud."
Undue influence is said to be a subtle species of fraud whereby mastery is obtained over the mind of the victim, by insidious approaches and seductive artifices. Some- times the result is brought about by fear, coercion, impor- tunity or other domination, calculated to prevent expres- sion of the victim's true mind. It is a constraint undermin- ing free agency overcoming the powers of resistance, bringing about a submission to an overmastering and un- fair persaasion to the detriment. of the other. (See Karnal Distillery Co., Ltd: v. Ladli Prashad, AIR 1958 Punj 190). The learned District. Judge did not advert to the cir-cum- stances that the defendant was in a position to dominate the will of the plaintiff and the transaction on the face of it appeared to be unfair, although as would appear from his judgment, it was pointed out to him that Kalu Khan was an old man and he could not have gifted the whole of his property to Abdul Rahim, who was in his active confi- dence disinheriting his own son and daughters. Some cases were also cited in this connection before the learned Judge but he held that "one (each ?) case dealt with Section 16 of the Contract Act and had no bearing on the facts of the case befroe him."
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
8. The rule laid down in Section 16 of the Indian Contract- Act is not restricted to cases where strictly or technically fiduciary relationship is established. The rule applies to all varieties of relations where the possibility of exercise of CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 33 of 52 dominion and influence exists. The. rule has been ex- tended to cases where possibility of exercising influence exists from confidence created or established by the rela- tions between the donor and the donee. On the facts above stated it was thus for the respondent to establish that it was free act of Kalu Khan. Unless this burden was discharged, it should have been held by the courts below that the gift deed was executed by Kalu Khan on account of the undue influence of the respondent. The learned District Judge has observed that Kalu Khan was advised by his friends to de- sist from making the gift but he did not pay any heed to it. The presumption of undue influence arising under Section 16(3) of the Contract Act can be rebutted by showing that the donor had independent legal advice.
In Inche Noriah v. Shaik Allie. AIR 1929 PC 3 it was held that:
"Independent legal advice is not the only way in which the presumption of undue influence can be rebutted; nor does the fact that independent legal advice was given^ rebut the presumption, un-less it be shown that the advice was taken."
In that case although evidence was led on behalf of the de- fendant that before executing the deed plaintiff had inde- pendent advice from Mr. James Aitken a lawyer of Singa- pore yet their Lordships observed that:
"Their Lordships do not doubt that Mr. Aitken acted in good faith, but he seems to have received a good deal of his information from the respondent; he was not made aware of the material fact that the property which was be- ing given away constituted practically the whole estate of the donor, and he certainly does hot seem to have brought home to her mind the consequences to herself of what she was doing, or the fact that she could more prudently, and equally effectively, have benefited the donee without un- due risk to herself by retaining the property in her own possession during her life bestowing it Upon him by her will. In their Lordships' view the facts proved by the re-CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 34 of 52
spondent are not sufficient to rebut the presumption of un- due influence which is raised by the relationship proved to have been in existence between the parties; and they re- gard it as most important from the point of view of public policy to maintain the rule of law which has been laid down and to insist that a gift made under circumstances which give rise to the presumption must be set aside unless the donee is able to satisfy the Court of facts sufficient to rebut the presumption."
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10. This section lays down the general law and even though a party may be a Mohammadan he can avoid the contract on the ground that his consent was obtained by undue influence. The option of avoiding a contract pro- cured by undue influence under Section 19A can also be exercised by the heirs of a party is not disputed. What is urged is this that the option of revoking a contract is not available to the heirs of a Muslim even under Section 19A.
11. In my view Section 19A is applicable to all persons in- cluding Mohammadans and even an heir of a Moham- madan can have the option of avoiding contract procured in the manner mentioned in Section 19A. This right of his is not curtailed by the provisions of the Mohammadan Law. On the other hand the Mohammadan Law gives a further right of revoking the gift and in that case it is not necessary for the donor to establish that the transaction was brought about on account of undue influence of the donee. Had the suit been simpliciter for the revocation of gift without having been based on the ground of undue in- fluence, fraud and misrepresentation, then the) objection by the learned counsel would have been available to him. But the present case is governed by Section 19A. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 9.8 It is submitted by ld. Counsel for defendant that plaintiff has CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 35 of 52 failed to prove his pleading as per para no. 6 of plaint the mother Ms. Ram Piari Dotania was drugged. It is claim of the plaintiff that defendant is running a medical store by then name of Umesh Chemist Store. He has knowledge of medicine that how they have to be administered. Thereby the defendant had administered drugs to the mother to get the deed executed. However this claim of the plaintiff is merely statement of fact and which is denied by the defendant. Merely a statement without any direct evidence in this respect is no evidence in the eyes of law when so denied by the defendant. Hence the above claim of the plaintiff is dismissed.
9.9 It is submitted by ld. Counsel for the defendant that u/Sec. 68 of Indian Evidence Act, 1872 the proviso is not applicable on the defendant and thereby the defendant is not required to prove the gift deed by calling attesting witness but it is for the plaintiff to bring the necessary witness on record that the gift deed was not duly executed. It is noted that in the proviso itself the exemption Clause is laid down that:
"unless its execution by a person by whom it purports to have been executed is specifically denied."CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 36 of 52
In view of the above it has to be seen that whether the present case falls in the exemption clause. In cross-examination of DW-1 it is admitted by the defendant they have filed joint written statement before Hon'ble High Court of Delhi in Civil Suit titled Sarita Dotania v. Ram Piari and Ors. It is also admitted fact that there is no amendment as to signing to said written statement Ex.PW-1/3 before Hon'ble High Court of Delhi. Her mother was alive when the said written statement was filed before the Hon'ble High Court of Delhi. In the said written statement filed before Hon'ble High Court of Delhi is dated 18.09.2012 in which the mother Ms. Ram Piari defendant no. 1 the suit property in the present case is owned by the mother late Ms. Ram Piari Dotania as per para no. 3 in written statement in reply on merits. The written statement is dated 18.09.2012 and the gift deed is Ex.PW1/16=Mark A on record which is dated 09.04.2012. Hence after the alleged execution of gift deed the mother has still claimed ownership of suit property in the written statement filed before Hon'ble High Court of Delhi which tantamount to specific denial of alleged gift deed in favour of defendant by the mother before Court of law. Hence in absence of this specific denial which is proved on record by the admitted document which is written statement Ex.PW1/3. Now the case of the plaintiff falls in the exemption CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 37 of 52 clause to the proviso of Section 68 of Indian Evidence Act, 1872 and thereby it is for the defendant to prove the due execution of this gift deed on record. The defendant has failed to prove by bringing necessary witness to this gift deed onus of which has since been shifted on the plaintiff on proof of Ex.PW1/3 on record. Hence the citation relied upon by the defendant titled Govindbhai Chhotabhai Patel & Ors. v. Patel Ramanbhai Mathurbhai in Civil Appeal No. 7528 of 2019 at para no. 26, 29, 31, 40 and 41 is held not applicable on the defendant in the present case. The relevant para are reproduced as under.:
31) The appellants challenged the gift deed on account of probabilities as the witnesses were not related to the family or the friends or that the gift was not for religious or charitable purposes. The other challenge was on the ground of forgery or fabrication. The entire reading of the plaint does not show that there was any specific denial of execution of the gift deed.
40) In Kannan Nambiar v. Narayani Amma & Ors.15, the Division Bench of the Kerala High Court was considering a suit filed by daughter of a donee claiming share in the property. The gift deed was admitted in evidence without any objection. The Court held that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document.
The Court held as under:
CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 38 of 52"14. Ab initio we have to examine whether there is any specific denial of the execution of the document, in the pleadings. Before considering whether there is specific denial we have to consider what is the exact requirement demanded when the proviso enjoins a specific denial. 'Specific' means with exactness, precision in a definite manner (See Webster's 3rd New International Dictionary). It is clear, that something more is required to connote specific denial in juxtaposition to general denial. See Dashrath Prasad v. Lallosing (AIR. 1951 Nag. 343) 15 1984 SCC OnLine Ker 174 : 1984 KLT 855
15. We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso. xx xx xx
18. The question which elicited the above answer gives a clear understanding of the case of the defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The respondents can seek the aid of the proviso to S. 68 of the Evidence Act. No defect CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 39 of 52 in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift deed."
41) The facts of the present case are akin to the facts which were before the Kerala High Court in Kannan Nambiar. The appellants have not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and in the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed. As per evidence on record, the Donee was taking care of the Donor for many years. The appellants were residing in the United States but failed to take care of their parents.
Therefore, the father of the appellants has executed gift deed in favour of a person who stood by him. We find that there is no error in the findings recorded by the High Court.
The case titled Chhuttan Lal v. Shanti Prakash & Ors. (1981) AIR (Allahabad) 50 at para no. 4 to 7 is held not applicable to the facts of the present case in view of the fact that the case of the plaintiff falls within the exemption clause to the proviso of Section 68 of Indian Evidence Act, 1872.
4. Section 68 Evidence Act runs as follows :-- "Proof of execution of document required by law to be attested :-- If CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 40 of 52 a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence :
"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom It purports to have been executed is specifically denied."
5. It seems to me that the courts below have misconstrued the effect of Section 68 Evidence Act in the present case. Occasion for applying the rule of exclusion from evidence in Section 68 arises when a party seeking to rely on a document requiring attestation, fails to prove it in the given manner. The party will then not be able to use it as evidence. But this procedural disability against use of a document as evidence cannot by any stretch be regarded as an affiirmative finding that grounds of attack for avoidance of the deed as claimed in the original relief or cancellation subsisted. It is obvious that such disability of the defendant depending on the future containgency of failure to adduce the proper proof can never be a ground of attack. The plaintiff can succeed in the suit only on the strength of this own case.
In the present case in the plaint taken as a whole, be attacked the gift-deed on the grounds that it was obtained by fraud or undue influence also wrongly appellant that it was not executed or attested according to law. Now on the con current finding of the courts below, the plaintiff failed to make out any case for cancellation of the gift-deed. Once that position is reached, the suit has to fail because the plaint in substance bases even the reliefs of possession CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 41 of 52 and declaration an the cancellation. It as then not necessary for defendant to prove the gift-deed and use it as his evidence to resist the suit. The bare allegation that it is not executed or attested according to law without any evidence in support cannot throw the burden on the defendant to prove due execution when the existence of the document is admitted and no specific defect in execution or attestation is pointed out.
The allegation that the execution was not the mental act of the donor an view of his physical and mental condition in the absence of any specific case of fraud or forgery also is not more than a step in furtherance, of the broader plea of undue influence. Therefore, on the pleadings and findings of this case, there was no occasion for the defendant- appellant to prove the gift-deed in the manner required by Section 68 Evidence Act. The plaintiff himself had admitted its existence subject to his pleas which he faded to substantiate and that was sufficient to defeat his claim. He cannot derive any advantage from the defendant's failure to prove the gift-deed in accordance with Section 68 because in the circumstances of this case such proof was not necessary to resist the suit.
6. It may be that if the plaintiffs had filed a suit for possession as legal representatives of Munshi Lal without admitting the existence of the gift-deed and the defendant had relied on the gift-deed Section 68 would have come into play and the defendant would have been required to adduce proper proof of attestation on peril of the defence being thrown out. But that is not the position here. The primary attack in the suit is on the gift-deed and had to he so for otherwise the plaintiff would have had not even the semblance of a cause of action when the suit was filed in Munshi Lal's lifetime. The subsequent substitution of the relief for possession did not change this character of the suit The emphasis on the grounds for cancellation in the CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 42 of 52 plaint cannot be ignored as dispensable so as to leave this to be a suit on title alone merely on the ground that suit for possession could have been filed on the basis of title without any attack on the gift-deed. To do so would be highly unfair to the defendant for the manner of frame of the suit bears on the questions of whether there is specific denial of the gift-deed by the plaintiff; applicability of Sec. 68 Evidence Act; and, burden of proof in respect of the gift-deed. If this looks like a pedantic and technical view of the plaint case, it should be remembered that a liberal reading of the plaint in this matter could lead to grave injustice.
7. I am also of the opinion that in the circumstances of this case, it is not possible to say that there was specific denial of the execution on behalf of the plaintiff. Whether there was such denial has not to be determined merely on the pleading of the party. The proceedings including evidence in the case and the conduct of parties till the stage of proof by the defendant is reached are also to be considered for a proper answer to the question. In Dashrath Prasad v. Lalloo Singh, (AIR 1951 Nag 343) Bose C. J. observed that the word specific must mean something over and above general denial. It was also observed that each case will depend on its own facts. The decision refers to Bhim Singh v. Fakir Chand, (AIR 1948 Nag 155) in which a plea that "the mortgagor had no knowledge of the bond" was held not be specific denial of execution of the bond. With respect I am of the opinion that the present is more or less a similar, case.
The existence admitted subject to objection in the light of absence of any evidence as to what transpired at the completion of the deed is tantamount to the usual admission in the form "formal proof dispensed with"
adopted in trial courts while recording admission on documents. It means that the document as it appears on the CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 43 of 52 face was to be read in evidence but this was to be subject to evidence of the parties. Since no evidence was led against due execution or due attestation, it cannot be said that there was any specific denial of execution. As already indicated the bare allegation that Munshi Lal was old and infirm and could not understand the nature of the document cannot in the circumstances of this case be regarded as specific denial of the execution. Therefore, differing from the lower courts I would hold that the case was covered by the proviso and as there was no specific denial it was not necessary to prove the gift-deed in accordance with Section 68 Evidence Act before it could be used as defendant's evidence. The appeal succeeds.
However the citation relied upon by the defendant titled Patel Ramanbhai Mathurbhai vs Govindbhai Chhotabhai Patel on 5 September, 2018 (supra) has laid down the due requirement under S.68 of Indian Evidence Act, 1872 as under.:
"89. Let me look into the decision of the Supreme Court in the case of Rosammal Fernandez (supra). This decision has been relied upon by Mr. Shah, the learned senior counsel to contend and make good his submission that once there is a denial of the execution of the gift deed, then the onus immediately shifts upon the other side to establish the legality and validity of the gift deed, and in the case on hand, according to Mr. Shah, the defendant has not been able to establish the legality and validity of the gift deed as he failed to examine one of the attesting witnesses. In Rosammal (supra), the short question before the Supreme Court was whether the High Court was right to entertain a gift deed in view of the proviso to Section 68 of the Indian Evidence Act. In the said case, the CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 44 of 52 appellant filed a suit for partition of the plaint schedule property claiming 2/5th share in the same. The appellant also challenged the execution of the gift deed and the settlement deed. The Trial Court dismissed the suit. The First Appeal before the District Court also failed. The matter reached before the High Court in Second Appeal. The High Court took the view that as there was no specific denial of the execution of the document, there was no need to examine one of the attesting witnesses to the said gift deed. The Supreme Court, while allowing the appeal, so far as the claim of the appellant to the extent of 2/5th share over the schedule A property was concerned, held as under:
"7. We find the High Court committed error by drawing such inference. In considering this question, whether there is any denial or not it should not be casually considered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. In fact the very finding of the High Court; "it is difficult to infer a specific denial of the execution of the document" shows uncertainty and vagueness in drawing such inference. In considering applicability of proviso to S. 68 the finding should be clearly specific and not vaguely or negatively drawn. It must also take into consideration the pleadings of the parties which has not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead. In the present case, we find that the relevant part of the pleading is recorded in the judgment of the trial Court dated 17th August, 1977 which is the judgment prior to the remand.
8. The judgment records the pleadings to the following effect :
"The gift deed No. 1763/73 and settlement deed No. CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 45 of 52 1764/73 were brought into existence fraudulently without the knowledge and consent of Jaius Mariyan Fernandez. On the date of the alleged execution of the above said two documents Jaius Mariyan Fernandez was confined to bed due to paralysis. At that time he was not in a position to execute any document. In executing the documents defendants 1 and 2 forged the signature of their father after influencing the sub- registrar."
9. The aforesaid pleading leaves to no room of doubt about denial of execution of the said documents. The pleading records, that defendants Nos. 1 and 2 forged the signature of the father after influencing the sub- registrar. The denial cannot be more stronger than what is recorded here. Once when there is denial made by the plaintiff, it cannot be doubted that the proviso will not be attracted. The main Part of S. 68 of the Indian Evidence Act puts an obligation on the party tendering any document that unless at least one attesting witness has been called for proving such execution the same shall not be used in evidence.
10. Section 68 of the Indian Evidence Act :
"68. Proof of execution of document required by law to be attested : -If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;
Provided that it shall not be necessary to call at attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, XVI of 1908 unless its execution by the person by whom CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 46 of 52 it purports to have been executed is specifically denied."
11. Under the proviso to S. 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply. In the present case as we have held, there is clear denial of the execution of such document by the plaintiff, hence the High Court fell into error in applying the said proviso which on the facts of this case would not apply. In the present case as we have held, there is clear denial of the execution of such document by the plaintiff, hence the High Court fell into error in applying the said proviso which on the facts of this case would not apply. In view of this the very execution of the gift deed Exhibit B-1 is not proved. Admittedly in this case none of the two attesting witnesses has been produced. Once the gift deed cannot be tendered in evidence in view of the non-compliance of S. 68 of the Indian Evidence Act, we uphold that the plaintiff has successfully challenged its execution. The gift deed accordingly fails and the findings of the High Court contrary are set aside. In view of this no right under this document accrue to the concerned respondent over Schedule A property which is covered by this gift deed."
In the present case there is specific denial as to execution of gift deed by the mother by claiming her ownership over the entire suit property after due execution of gift deed. The onus had hence shifted on the defendant which defendant had failed to CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 47 of 52 discharge. In view thereof it is held that plaintiff is entitled for cancellation of gift deed dated 09.04.2012 in respect of property no. 77/5619, Regharpura, Karol Bagh, New Delhi and accordingly the said gift deed stands cancelled and for compliance of which copy of present judgment be sent to Sub- Registrar concerned for cancellation of this gift deed and to submit compliance report within a month from the date of pronouncement of judgment of present suit. Accordingly present issue is decided in favour of plaintiff and against the defendant.
10. ISSUE NO. 22. Whether the plaintiff is entitled to decree of permanent injunctions against defendants as prayed for? OPP 10.1 The findings under issue no. 1 above, are equally applicable under the present issue and be read as part and parcel of the present issue. The same are not repeated herein for the sake of brevity.
10.2 In view of findings under issue no. 1 above and claim of CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 48 of 52 defendant that he is exclusive owner of suit property there is threat to the title/right of the plaintiff in the suit property from defendant no.1. However no cause of action is proved by way of evidence in favour of plaintiff and against the defendant that defendant no. 1 was going to dispossess the plaintiff from the suit property in absence of proof of which it is held that plaintiff has failed to prove the cause of action in his favour that he is going to be dispossessed by defendant no.1. Hence relief as to restrain defendant no. 1 from dispossessing the plaintiff from the suit property is declined. However plaintiff is held entitled to relief of permanent injunction against the defendant no. 1 and its agents that they will not transfer, alienate or sell the suit property or create permanent encumbrance in the suit property in the nature that the title if exclusively belong to defendant no. 1. However there is no restriction as to disposal of respective rights of the parties in the suit property in view of Section 46 of Transfer of Property Act, 1882. The relief claimed by the plaintiff that defendant be restrained to rent out the suit property is disallowed in view of fact that after this cancellation of gift deed both the parties may have right in this property. Further, it is desirable in view of shortage of accommodation in NCT of Delhi that the suit property will not kept vacant and if possible it can be let out though the parties may have right in account against each CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 49 of 52 other. However no finding is granted in this respect as this is not subject matter of suit. Accordingly present issue is decided in favour of plaintiff and against the defendant.
11. ISSUE NO. 33. Whether the suit is not maintainable for want of cause of action? OPD 11.1 The findings under issue no. 1 and 2 above, are equally applicable under the present issue and be read as part and parcel of the present issue. The same are not repeated herein for the sake of brevity.
11.2 Since it is already held that plaintiff is entitled to decree of cancellation of gift deed. Thereby the cause of action is already discussed in the issues above that the defendant has threatened the right of the plaintiff in the suit property claiming himself as exclusive owner by virtue of gift deed dated 09.04.2012 and thereby the defendant had threatened the right and title of the plaintiff in the suit property. Hence cause of action exists with the plaintiff in the present suit. In view of above cause of action is held CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 50 of 52 in favour of plaintiff. The defendant has failed to discharge burden of proof of the present issue. Accordingly present issue is decided in favour of plaintiff and against the defendants.
12. R E L I E F 12.1 In view of findings under issues above issue no. 1, 2 and 3 are decided in favour of plaintiff and against the defendants. Hence the present suit of the plaintiff is decreed in that plaintiff is held entitled for cancellation of gift deed dated 09.04.2012 in respect of property no. 77/5619, Regharpura, Karol Bagh, New Delhi and accordingly the said gift deed stands cancelled and for compliance of which copy of present judgment be sent to Sub- Registrar concerned for cancellation of this gift deed and to submit compliance report within three month from the date of receipt of judgment of present suit. Plaintiff may submit certified copy of this judgment before sub-registrar concerned for necessary compliance which be also sent separately by Ahlmad of the present Court for compliance. Plaintiff is also held entitled to the relief of permanent injunction against the defendant no. 1 and its agents that they will not transfer, alienate or sell the suit property or create permanent encumbrance in the suit property in the nature that the title if CS NO. 620434/16 Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 51 of 52 exclusively belong to defendant no. 1. However there is no restriction as to disposal of respective rights of the parties in the suit property in view of Section 46 of Transfer of Property Act, 1882. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court JOGINDER Digitally signed
by JOGINDER
on 28.01.2021. PRAKASH PRAKASH NAHAR
Date: 2021.01.29
NAHAR 15:39:14 +0530
(JOGINDER PRAKASH NAHAR)
ADDL. DISTRICT JUDGE-04, CENTRAL,
TIS HAZARI COURT/DELHI
CS NO. 620434/16
Rajinder Kumar Dotania v. Davender Kumar Dotania & Anr. Page 52 of 52