Dismissed

Hari Ram v. Tarlok Chand

Himachal Pradesh HC4 Dec 2014RSA/160/2003

Case brief

AI extract

What is this about?

This regular second appeal challenged the decree validating a gift deed executed by an illiterate widow. The High Court upheld the lower courts' finding that the donor was in a position of dependence, the transaction was unconscionable, and the donee failed to prove the gift was voluntary. Consequently, the appeal was dismissed.

What did the court decide?

The substantial question of law is answered accordingly, holding the gift deed invalid and the appeal dismissed.

Hari Ram Vs Tarlok Chand — Succession and Inheritance | Himachal Pradesh HC (2014)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

¶2

RSA No. 160 of 2003.

¶3

Reserved on: 25.11.2014. Decided on: 4.12.2014.

¶4

Hari Ram ……Appellant. Versus Tarlok Chand …….Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?¹ Yes. For the appellant: Mr. Rajnish K. Lall, Advocate vice counsel. For the respondent: Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. ---------------------------------------------------------------------------------------------- Justice Rajiv Sharma, J.

¶5

This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, dated 6.1.2003, passed in Civil Appeal No. 54 of 1995.

¶6

Key facts, necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of the respondentplaintiff (hereinafter referred to as the plaintiff, for the convenience sake), Jayanti Devi instituted a suit for possession and declaration against the appellant-defendant (hereinafter referred to as the defendant). According to the plaintiff, she was owner to the extent of 8/27 share of land comprised in Khasra Nos. 28, 39, 41, 157, 169, 170 & 174 measuring 7 kanals 15 marlas. She was also co-owner to the extent of half share of land comprised in Khasra No. 4, as per entries of the Jamabandi for the year 1981-82. She was an illiterate

¶7

1 Whether reporters of the local papers may be allowed to see the judgment?

¶8

¶9

lady with rural background. The defendant was son of her brother. He started living with her and after some time, he persuaded her to execute a ‘Will’ of the suit land in his favour. Since she was very much influenced by the defendant, she agreed to execute a ‘Will’ in his favour. She never intended to execute the gift deed of the suit land in his favour. The defendant instead of getting the ‘Will’ executed, fraudulently, by misrepresenting the facts, exercised undue influence upon her and got the gift deed Ext. DW-1/A dated 18.7.1984, executed in his favour. The defendant has never rendered any services as mentioned in the alleged gift deed . She also alternatively prayed for maintenance @ Rs. 200/- per month from 18.7.1984 till her death.

¶10

The suit was contested by the defendant. The defendant has denied the averments contained in the plaint. According to him, the gift deed was genuine document and no fraud, undue influence or mis-representation has been exercised upon the executrix, as alleged. The replication was filed by the plaintiff. The learned Sub Judge Ist Class, Hamirpur, framed the issues on 8.6.1989. The learned Sub Judge Ist Class, Hamirpur, decreed the suit on 20.1.1995 in favour of the plaintiff. The defendant preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur dismissed the same on 6.1.2003. Hence, this regular second appeal.

¶11

This regular second appeal was admitted on the following substantial question of law on 28.4.2003:

¶12

¶13

“1. Whether both the Courts below have misread and misappreciated the oral and documentary evidence on record, more specifically, Exts. DW-1/A, endorsement DW-1/B and the agreement DW-1/C to come to the conclusion that gift was the result of undue influence, misrepresentation and fraud in order to reject the same?” 5. Mr. Rajnish K. Lall, Advocate, on the basis of substantial

¶14

question of law framed, has vehemently argued that both the Courts below have misread and misconstrued Ext. DW-1/A gift deed , endorsement Ext. DW-1/B and agreement Ext. DW-1/C. According to him, the gift was genuine. His client has not exercised any undue influence upon the plaintiff. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate, has supported the judgments and decrees passed by both the Courts below.

¶15

I have heard the learned Advocates for the parties and gone through the records of the case carefully.

¶16

The gift deed is Ext. DW-1/A dated 18.7.1984. Ikrarnama /Agreement is Ext. DW-1/C dated 18.7.1984. The endorsement is Ext. DW-1/B on Ext. DW-1/A. The copy of the Jamabandi is for the year 1981-82. According to the plaintiff gift deed Ext. DW-1/A was the result of fraud, mis-representation and undue influence and thus not binding upon the plaintiff.

¶17

The plaintiff has appeared as PW-1. According to the plaintiff, the defendant was her nephew. He stayed with her for six months. He asked and persuaded her to execute a ‘Will’ in his favour. He managed the execution of the ‘Will’ at Nadaun and treated her

¶18

¶19

nicely for three months. Thereafter, he started taking the produce of the suit land to his house and on seeing all this, she objected to it. On this, the wife of the defendant quarreled with her and even broke her forearm. Not only this, the defendant also proclaimed that she had already transferred the land in his favour and as such, she had nothing to do with it.

¶20

PW-2 Punnu Ram deposed that defendant and his wife started living with the plaintiff rendering all kind of services to her. After six months, she was taken by him to Nadaun and asked her to execute the ‘Will’ of the suit land. She executed the ‘Will’ and the defendant is now cultivating the land in question. Later on, the dispute arose in between the parties and the plaintiff came to him and represented that the defendant was now threatening her. She was now maintaining herself by begging. PW-3 Roshan Lal deposed that the plaintiff used to reside in her own house and maintaining herself because the defendant used to render services to her about two years back.

¶21

The defendant has appeared as DW-1. According to him, the plaintiff executed gift deed on 18.7.1984 in his favour which was scribed by DW-2 Deep Kumar, Petition Writer. It was signed by the marginal witnesses Sh. R.D.Kaundal and Ishwar Dass. He proved copy of the gift deed vide Ext. DW-1/A. The gift deed was presented before the Tehsildar for registration. The Tehsildar/Sub-Registrar, read over the contents of the gift deed to the plaintiff, who after

¶22

¶23

admitting its contents to be correct put her thumb impression on the same. Thereafter, Ikrarnama Ext. DW-1/C was also executed, vide which, he agreed to pay maintenance at the rate of Rs. 100/- per month to the plaintiff. DW-2 Deep Kumar Petition Writer deposed that he scribed gift deed Ext. DW-1/A. Jayanti Devi put her thumb impression on the same after admitting the contents of the same to be correct and marginal witnesses also signed the gift deed . DW-3 Ishwar Dass was the marginal witness of the gift deed Ext. DW-1/A. He also signed Ikrarnama Ext. DW-1/C. DW-4 Mahender Singh deposed that he has scribed DW-1/C. DW-5 Rup Lal testified that on the date of execution of the gift deed , he was also taken to Tehsil Office because plaintiff was his sister and when he reached the Tehsil Office, the Petition Writer had already scribed the gift deed Ext. DW1/A. He was reading its contents to the executrix-plaintiff. He intervened and asked as to what has been thought about the future of the plaintiff. He suggested to execute Ikrarnama to pay maintenance @ Rs. 100/- per month to the plaintiff by the defendant. Thereafter Ikrarnama Ext. DW-1/C was executed. DW-6 Pirthi Chand testified that plaintiff never made any complaint with him as to whether the defendant was not rendering any services to her. DW-7 Ram Dass Kaundal is also one of the marginal witnesses of the gift deed . He testified that plaintiff put her thumb impression in gift deed after admitting its contents to be correct.

¶24

¶25

The plaintiff was illiterate widow lady. The precise case of the plaintiff, is that the defendant persuaded her to execute ‘Will’ in his favour. However, the defendant cleverly got the gift deed executed from her vide Ext. DW-1/A. The gift deed is dated 18.7.1984 and the Ikrarnama Ext. DW-1/C was executed vide which defendant agreed to pay maintenance to the plaintiff @ Rs. 100/- per month. Once the gift deed was executed as per the defendant, there was no occasion for him to execute Ikrarnama Ext. DW-1/C, whereby he agreed to pay Rs. 100/- per month to the plaintiff. He could not explain the circumstances under which Ikrarnama Ext. DW-1/C was executed. He could not produce the receipt to the effect that he was regularly paying the amount of maintenance to plaintiff @ Rs. 100/- per month. DW-2 Deep Kumar, Petition Writer has admitted that plaintiff was an illiterate lady. DW-3 Ishwar Dass has signed Ext. DW-1/A and Ext. DW-1/C. He also admitted that the plaintiff was under the influence of defendant. He also admitted that defendant remained a ‘ Ward Panch’ with him in his Panchayat. He also admitted that the plaintiff had taken him for executing the ‘Will’. However, afterwards, he changed his version and stated that he was brought by the plaintiff for the execution of gift deed . DW-4 Mahender Singh has scribed Ikrarnama Ext. DW-1/C. He could not explain as to what was the necessity to execute Ikrarnama by defendant. DW-5 Rup Lal testified, as noticed above, that he had gone to Tehsil. Gift deed was being written. He intervened and suggested to execute Ikrarnama in favour

¶26

¶27

of the plaintiff to pay maintenance @ 100/- per month by the defendant. DW-6 Prithi Chand has admitted that defendant remained Vice President of the Panchayat. DW-3 Ishwar Dass was the President. PW-7 Ram Dass is not resident of the village of the plaintiff. His village is at a distance of 6 km. from the village of the plaintiff. He remained counsel of the defendant.

¶28

The defendant has failed to produce tangible evidence to establish that gift deed Ext. DW-1/A dated 18.7.1984 was not the outcome of undue influence, fraud or mis-representation. Mr. Bhupinder Gupta, Sr. Advocate, has also drawn the attention of the Court to Ext. P-1 Jamabandi for the year 1981-82. It is not discernable from the entry in Ext. P-1 that it was attested and signed in the presence of plaintiff. The defendant has not even placed on record mutation order or certified copy thereof. The defendant was living with plaintiff. He was in a position to dominate her will. It is in these circumstances, he has got the gift deed dated 18.7.1984, executed from her in his favour. The plaintiff was looking after herself.

¶29

In the case of Vithal vrs. Narayan, reported in AIR 1931 Nagpur 69, the Hon’ble Court held that even where it is not proved that the lady donor is not a strict pardanashin woman in the sense necessary to attract the application of the rule that protects pardanashin women, still when it is established that a transferee is in the active confidence of the transferor, Section 111, applies.

¶30

¶31

In the case of Sayed Zawar Hussain Shah and another

¶32

vrs. Mian Saleh Mohammad Shah, reported in AIR 1940 Lahore 515, the Division Bench has held that when a gift is made by pardanashin lady, the donee must prove that donor had independent advice and that she understood the deed.

¶33

In the case of Mt. Sunder Kuer vrs. Shah Udey Ram and others, reported in AIR (31) 1944 Allahabad 42, the Division Bench has held that when the pardanashin lady is to transaction, onus is on person relying on transaction to prove that it was free and intelligent act of the lady.

¶34

In the case of Bhola Ram Lieri and ors. vrs. Peari Devi

¶35

and ors. reported in AIR 1962 Patna 168, the Division Bench has explained the undue influence to mean that the party is in dominating position. It is further held that where a party challenges a deed of gift as bad on the grounds of its having been executed under undue influence, he must prove firstly, that there was a special relationship between the donor and the donees on account of which the former relied upon the latter for advice and the latter were in a position to dominate the will of the former in giving the advice; and secondly, that the donees used that position to obtain an unfair advantage for themselves. Their lordships have held as under:

¶36

“7. The first contention of Mr. Das was that the deed of gift was bad inasmuch as it was executed by Sheodutt under undue influence. He referred to the following observations of Lindley, L. J. (see Allcard v. Skinner, (1887) 36 Ch. D. 145 at p. 181) and submitted that the present

¶37

¶38

case was covered by the second proposition laid down by the learned Lord Justice;

¶39

"First, there are the cases in which there has been some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor..................

¶40

The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made".

¶41

But our law on the subject is slightly different as will appear from the definition of "undue influence" in Section 16 of the Indian Contract Act, which reads thus:

¶42

"16 (1) A contract is said to be induced by 'Undue Influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

¶43

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-

¶44

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

¶45

¶46

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age illness, or mental or bodily distress.

¶47

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, On the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

¶48

Nothing in this sub-section shall affect the provisions of Section 111 of the Indian Evidence Act (I of 1872)".

¶49

It will be noticed that the ingredient of using the dominant position contained in Sub-section (1) is absent from the proposition laid down by Lindley, L. J. In Poosathurai v. Kannappa Chettiar, 47 Ind App 1: (AIR 1920 PC 65) the Privy Council explained the provisions o Section 16 of the Indian Contract Act thus:

¶50

"When a party to a contract seeks to set it aside on the ground of undue influence, it is not sufficient for him under Section 16 of the Indian Contract Act, 1872, to establish that the other party was in a position to dominate his will. He must also prove that the other party has used that position to obtain an unfair advantage over him. It is only if the transaction appears to be unconscionable that, by Sub-section (3), the burden of proving that the contract was not induced by undue influence is thrown upon the person who was in a dominating position. He, in that case must prove affirmatively that no domination was practised, but that the person seeking to set aside the contract was scrupulously kept separately advised in the independence of a free agent".

¶51

The appellants in the present case must, therefore, prove, firstly, that there was a special relationship between Sheodutt and the donees on

¶52

¶53

account of which the former naturally relied upon the latter for advice and the latter were in a position to dominate the will of the former in giving the advice; and, secondly, that the donees used that position to obtain an unfair advantage for "themselves. But if the appellants prove that the donees were in a position to dominate the will of Sheodutt and that the transaction appeared to be unconscionable the onus will be shifted on the donees to show that Sheodutt was not induced to make the gift by undue influence and he had the opportunity to obtain independent advice before making the gift. Mr. Das also relied in Section 111 of the Indian Evidence Act which reads thus:

¶54

"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 good faith of the transaction is on the party who is in a position of active confidence".

¶55

In other words, if the appellants prove in the present case that the donees were in a position of advantage over Sheodutt, who put trust in them, the onus is shifted on the donees to prove that they did not abuse that trust.

¶56

Mr. Das has referred to certain admitted facts to show that the donees were in a position to dominate the will of Sheodutt. As stated earlier, the donees are Peary Devi (plaintiff No. 1), wife of Harihar Prasad, (plaintiff No. 3), son of the sala of Sheodutt, and Janki Devi (plaintiff No. 2), wife of Durga Prasad (plaintiff No. 4), who is the son of Peary Devi, daughter's daughter of Sheodutt. Harihar (P. W. 5) has stated that he was brought up by Sheodutt at his house and Durga was brought up by Sheodutt after the death of his mother in his infancy. He has explained this fact further in cross-examination, where he says that each of them was brought at the age of one year by Sheodutt to his house. Both of them were married by Sheodutt. He has, of course, stated that Durga's father took Durga to Asansol when he was ten years old and since 1948 or thereabout Durga has been living in Calcutta in

¶57

¶58

connection with a business. But he has admitted that the wife of Durga lived with Sheodutt and she still lives in a portion of the gifted house.

¶59

Prahlad Modi (P.W. 1), Chairman of Madhupur Municipality, stated that Harihar and Durga were living with 'Sheodult since their boyhood and they were living with Sheodutt with their wives. Even in the deed of gift (Ext. A) dated the 5th June 1948, the executant, Sheodutt, has said that he brought Harihar and Durga in their infancy and since then he and his wife had been maintaining them as their sons. Then he states that he got them married and since the marriage the wives of both of them, that is, the donees, had been serving and taking care of Sheodutt and his wife; and out of boundless love and affection for them he was making this gift. None of the contents of the deed of gift were disputed. Harihar has further said that Sheodutt had a business of potatoes which was looked after by him (Harihar), as Sheodutt had grown old. According to Harihar, Sheodutt died at the age of 80 years, three years after the deed of gift and, according to the deed of gift, the executant, Sheodutt was about 75 years old in 1948 and he had grown very old and felt helpless in walking.

¶60

The other plaintiffs have not been examined. Dwarka Prasad Sahu (D. W. 2), a neighbour, said that Sheodult died at a very old age and during his illness he used to lose the balance of his mind and to talk incoherently. The deposing defendant, Ramsaran Prasad, has stated that Sheodutt had become blind about eight years before his death and had lost the balance of life mind. But Ramautar Sah (P. W. 2), another neighbour, and Harihar have denied the fact that Sheodutt had lost his eye-sight or his power of understanding. The recitals in the deed of gift and the statements of Harihar and Prahlad prove, however, that (1) Sheodutt was so old at the time he executed the deed of gift that he felt helpless in walking, (2) he brought Harihar and Durga since their childhood, married them and maintained them as well as their wives, (3) Sheodutt had boundless affection for all of them, and (4) his

¶61

¶62

business was being looked after by Harihar. Thus, they were in a position to dominate the will of Sheodutt.

¶63

The other admitted facts in support of Mr. Das's contention are: (1) the gift was made in favour of Peary Devi, who could never inherit the property of Sheodutt even though her husband Harihar, and Janki Devi who was a distant heir, (2) the deed of gift was unnatural inasmuch as Sheodutt excluded his natural heirs, namely, his wife and thereafter the defendants-appellants and (3) by executing the deed of gift Sheodutt placed himself and his wife at the mercy of the donees inasmuch as he did not keep any property for himself. Incidentally, it may be mentioned that in 1936 Sheodutt had executed a will in which he made some provision for his wife as well. This will was in favour of Harihar, Durga, Harikishun (Harihar's brother), Musammat Rukmini Kumar (mother of Harihar), Srimati Gujari (mother of Durga) and Musamat Rabutari (wife of Sheodutt). The two holdings were given by this will to the first four persons; but it was further stated that Musammat Kabutari and Srimati Gujari would be entitled to live in one of the houses during their life-time and that Harihar and Durga woufd be bound to maintain them.

¶64

Further, these two ladies were amongst the executrix of the will and were required to look after the properties so long Murikishun, Harihar and Durga did not attain majority. The will would, however, have no effect, if the gift were a valid and effective transaction and there would be no provision for Sheodutt's wife or Musammat Gujari. It follows therefore that the plaintiffs were in a position to dominate the will of Sheodutt and, inasmuch as the transaction was unconscionable, the plaintiffs have to satisfy the court that they did not abuse their position and that the deed of gift was not brought about by any undue influence on their part. In such a case, the donee must show that the donor had independent advice and was removed from the influence of the donee when the gift was made. But the plaintiffs did not adduce, any

¶65

¶66

evidence to show that Sheodutt received any independent advice before executing the deed of gift; and even Harihar, the only plaintiff, who gave evidence, did not state that no undue influence was exerted on Sheodutt at the time.

¶67

The donor's wife, namely Musammat Kabutari, was not examined in court, though she filed a written statement in support of the case of the plaintiff; but any statement, in the absence of her statement on oath, is of no use to the plaintiffs in the eye of law. The scribe of the deed of gift, namely Sailjanand Prasad and two of the three attesting witnesses namely, Amvar Alt and Murli-dhar Sah both of Madunpur were not examined. The third attesting witness, Ramaular Sah (P. W. 2) in cross-examination did not say that Sheodutt received any independent advice or that he was for the time being removed from the influence of the, plaintiffs. His statement that the contents of the deed of gift were read over and explained to Sheodutt before be signed the same does not mean that he received independent advice. It is also remarkable that the deed was registered at the house of Sheodutt. Plaintiff Harihar has said that he had left the house after the arrival of the sub-registrar to call Ramantar Sah from the bazar and after calling him he had again left for bazar on some business. There is no evidence however, to show that the donees were not inside the house at the time or that Sheodutt received any independent advice.

¶68

Mr. Kaushai Kishore Sinha, learned advocate for the plaintiffsrespondents contended that there is no evidence to show that the donees or even Durga, husband of one of the donees, dominated the will of Sheodutt; and a distinction must be made between the donees and their husbands. But on account of the fact that the donees were living with Sheodutta since their marriage and that Sheodutt had boundless affection and love for them and their husbands, it was very easy for them to dominate the will of Sheodutt in his old age when he was even helpless in his walking and he was not in a position to

¶69

¶70

exercise his independent judgment due to his dotage for them. It appears that Durga was not at Madupur at the time the deed o[ gift was executed, but his wife was there. Of course, Harihar and Durga were themselves legatees under the will executed in February 1936 and they were not donees under the deed of gift, which came into existence about twelve years later; but under the wilt Durga and Harihar got only one house and Harikishun and Rukmini Kumari got the other home, subject to certain rights given to Musammat Kabutari and Gujari Kumari, while under the gift only the wives of Durga and Harihar were the sole beneficiaries without any reservation for any body else.

¶71

Thus Harihar and Durga got better benefit under the gift, and Harihar, who wag managing the affairs of Sheodutt must have played an important part in the creation of the deed of gift, Harihar could not obviously get the deed of gift executed in favour of his wife only, because in that case Sheodutt would have been suspicious of his intentions. The next argument was that, as Sheodutt wanted to give his properties to Harihar and Durga in 1936, the gift was a natural act of Sheodutt; but, as stated earlier, they could not have got the houses under the will exclusively even after the death of Sheodutt.”

¶72

In the case of Afsar Shaikh and another vrs. Soleman

¶73

Bibi and ors., reported in AIR 1976 SC 163, their lordships of the Hon’ble Supreme Court have explained the term undue influence. Their lordships have further held that whether a person is in a position to dominate the will of another and procure certain deed by undue influence is a question of fact which cannot be reopened in second appeal if decided in accordance with prescribed procedure. Their lordships have held as under:

¶74

“15. While it is true that undue influence', fraud', `misrepresentation' are cognate vices and may, in part, overlap in some

¶75

¶76

cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, r.2, of the Code of Civil Procedure, required to be separtely pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court.

¶77

It is well settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly, in accordance with the procedure prescribed, is not liable to be reopened in second appeal (Satgur Prasad v. Har Narain Das;(2) Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd.(3).”

¶78

In the case of Ajmer Singh and ors. vrs. Atma Singh,

¶79

reported in AIR 1985 Punjab and Haryana 315, the learned Single Judge has held that when an old man alleges gift deed was executed by him was not a voluntary act, the onus shifts on donee to prove that the gift was made voluntarily. It was held as under:

¶80

“4. I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record. In paragraphs 4 and 6 of the plaint (which appear to have been anomalously numbered therein), it is inter alia averred that the plaintiff being an old man, with feble health and weak eyesight, the father of the defendants-Charan Singh, taking advantage of his weaknesses, fraudulently got executed the gift deeds dated Jan. 12, 1977, in the names of his sons. The father of the defendants misrepresented the factum of the gift deeds and told the plaintiff that the papers related to the special power of attorney in his favour about the property of the plaintiff. Thus, the plaintiff signed the documents under the impression that he was signing the papers in regard to the special power of attorney in favour of Charan Singh, the father of the defendants, about his property. By doing so, the father of

¶81

¶82

the defendants committed a fraud upon the plaintiff and played a ruse on his innocence taking advantage of his weakness and simplicity. In the gift deeds, it was stated that Charan Singh, the father of the defendants-donees, was his pota (grandson) and had been serving him since long. it has been concurrently found by both the Courts below that Charan Singh, the father of the defendants, was not in any manner related to the plaintiff. Apart from that, there is no cogent and independent evidence to prove that Charan Singh had been serving the plaintiff in any manner. The defendants did not produce any witness from the village to depose about this fact. They were satisfied by only producing the attesting witnesses of the gift deeds. The learned Additional District Judge discussed the entire evidence on the record and gave a firm finding that the plaintiff was an old man having feeble and bad health and therefore could not resposed confidence in Charan Singh, the father of the defendants and that is why he asked him for the execution of the power of attorney in his favour. Charan Singh taking advantage of the ill-health of the plaintiff got the three gift deeds executed from him in favour of his three sons. Regarding the production of the witnesses on behalf of the defendants, the lower appellate Court observed that though the witnesses produced by them were from the village, but in such a case where the donor is issueless having no other family member, there is no dearth in the village to get evidence in favour of the donees. Surprisingly enough, as observed earlier, no independent witness was produced from the village to testify as to whether Charan Singh, the father of the defendants, was serving the plaintiff in any manner. Once these two facts are found to militate against the defendants, i.e. Charan Singh was not related to the plaintiff and that he was not rendering any services to him, then it was for the defendants to prove that the gift deeds were voluntarily executed by the plaintiff. S. 122 of the Act, reads--

¶83

"Gift' defined--'Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee.

¶84

Acceptance when to be made--Such acceptance must be made during the lifetime of the donor and while he is capable of giving.

¶85

If the donee dies before acceptance, the gift is void".

¶86

From a perusal of the above provisions, it is quite clear that the gift, in order to be valid, must have been made voluntarily. In the present case, the evidence in this behalf is missing. It was for the defendants to prove that the plaintiff executed the gift deeds voluntarily after understanding the nature of the documents. This, the defendants have failed to prove by any cogent evidence as found by the lower appellate Court. The judgments relied upon by the learned counsel for the appellants have no applicability to the facts of the present case. The

¶87

¶88

case of a gift deed is on a different footing than a sale deed or any other document which is executed for consideration. A gift is made by the donor ordinarily without consideration and, therefore, it must be executed voluntarily by the donor. The circumstances of the present case clearly go to prove that the plaintiff was an old man with feeble health and weak eyesight and was unlettered. Charan Singh, the father of the defendants, was in a position to dominate his will as he had faith in him and that is why he wanted to execute the special power of attorney in his favour in regard to his property. The mere fact that the plaintiff has many litigations pending is of no consequence unless there was evidence to prove as to what type of litigation if at all relevant to the matter, he was having. In this view of the matter, I do not find any infirmity or illegality in the findings of the lower appellate Court as to be interfered with in second appeal.”

¶89

In the instant case, the defendant was in a position to dominate the will of the old widow. She was illiterate lady with rural background. She was made to understand that she has to execute the ‘Will’ but infact ‘Gift’ was got executed from her. The family of the defendant has also stayed with the plaintiff. They have exercised undue influence upon the plaintiff. The execution of ‘gift’ in favour of the plaintiff was not voluntary act and it was obtained by way of fraud and mis-representation and undue influence. The substantial question of law is answered accordingly.

¶90

Consequently, the learned Courts below have correctly appreciated the oral as well as documentary evidence on record. There is no merit in this appeal, the same is dismissed.

¶91

December 04, 2014, ( Rajiv Sharma ), (karan) Judge.

Hari Ram v. Tarlok Chand

Case brief

What is this about?

What did the court decide?

Hari Ram v. Tarlok Chand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ses Ram Vs Reeta Bhardwaj

Padam Chand Vs Chander Kanta

Roshan Lal Vs Narinder Chauhan

Gauri Dutt Vs State

Manish Chaudhary Vs Marketing Committee Shimla and Kinnaur

Naresh Kumar Vs State of Hp