JUDGMENT
Jawahar Lal Gupta, J.
1. This is the plaintiff’s second appeal. The dispute relates to 106 kanals 2 marlas of land. A few facts may be noticed.
2. The plaintiff-appellant was admittedly the owner of this land. On May 26, 1975, she executed a sale deed regarding 10 Kanals of land in favour of Dalip Singh etc. She alleges that respondent No. 1 (Chuhar Singh) had accompanied her and he fraudulently obtained her thumb impression on a gift deed regarding 106 kanals 2 marlas of land in his own favour. Thereafter, on June 8, 1976, respondent No. 1 sold 61 kanals 5 marlas of land in favour of respondents 2 to 5 vide sale deed Ex. D-1. On June 14, 1976, the plaintiff-appellant filed a suit for injunction. However, the suit was withdrawn by her on October 21, 1977, with permission to initiate fresh proceedings. On October 218, 1979, she instituted the suit out of which the present appeal has arisen.
3. In this suit the plaintiff-appellant claimed that respondent No. 1 is Barber by caste. She had full faith and confidence in him While going to execute the sale deed in respect of 16 kanals of land in favour of Dalip Singh, respondent No. 1 had accompanied her. The sale-deed was executed. Subsequently, defendants 2 to 5 disclosed to her that they had purchased 61 kanals 5 marlas of land from respondent Chuhar Singh. Then she came to know that on May 26 1975, a gift deed had been got executed from her by fraud and misrepresentation. Consequently, she filed the suit for a declaration that the gift deed dated May 26, 1975 and the sale deed dated June 8, 1976, were illegal and void and that she was entitled to the possession of the entire land.
4. The suit was contested by the defendant-respondents. Respondent No. 1 pleaded that the gift deed had been executed in his favour by the plaintiff and possession of land had been delivered to him. It was further submitted by him that having become owner of the land, he was entitled to sell it to anyone including defendant-respondents 2 to 5.
5. The learned trial Court framed issues and on examination of the evidence decreed the suit with a finding that the gift-deed was not proved to have been validly executed. Aggrieved by the judgment and decree passed by the learned trial court, the defendants filed an appeal. The learned lower appellate court reversed the finding of the trial court that the execution of the gift deed had not been proved. Accordingly, it accepted the appeal, reversed the judgment and decree passed by the trial court and dismissed the suit. Aggrieved by the judgment and decree of the learned lower appellate court, the plaintiff has approached this Court through the present second appeal.
6. In June 1992, Civil Misc. Application No. 2246-C 1992 was filed on behalf of the appellant with a prayer that the appeal may be dismissed as withdrawn. It was stated that the dispute between the appellant and the contesting respondent-Chuhar Singh had been settled with the intervention of the villagers and in view thereof the appellant did not wish to prosecute the appeal. This application was supported by an affidavit of Harcharanjit Kaur wife of Shri Baldev Singh, who was the general attorney of the appellant. Vide order dated June 11, 1992, the appeal was dismissed as withdrawn. Thereafter, the appellant filed a review application for condonation of delay. In this application it was alleged that the power of attorney executed by the appellant in favour of Harcharanjit Kaur had been revoked on May 18, 1992. the civil misc. application for withdrawal of the appeal had been filed after the revocation of the power of attorney. Accordingly, the appellant claimed that a fraud had been played on her. She consequently prayed that the order dated June 11, 1992 may be recalled and the appeal be heard and decided on merits. Notice of the application was directed to be issued to the respondents. Thereafter, the matter was listed for hearing on various occasions and adjourned from time to tome at the request of the counsel for the parties. The case had come up for hearing on November 21, 1995. On that date, leaned counsel for the respondents stated that even though the appeal had been initially withdrawn and there was no merit in the claim made by the appellant, yet, in view of the fact, that she is a widow, the respondents were willing to pay an amount of Rs. 1.5 lacs to her. The case was then adjourned to enable the learned counsel for the appellant to obtain instructions. After receipt of instructions from the appellant who had come to the Court, Mr. Mittal stated that she was not wanting the money offered by the respondents. However, Mr. Mittal maintained that the appeal had not been withdrawn in accordance with law and, therefore, the order dated June 11, 1992 deserved to be recalled. On behalf of the respondents, it was maintained that the attorney of the appellant had a right to withdraw the appeal and, thus, the order did not deserve to be reviewed. Whatever may be the technicalities, lest there should be a failure of justice, learned counsel for the parties were asked to argue the case on merits. Time was granted. Record which had been returned to the Trial Court was summoned. The counsel have been heard.
7. Mr. R.S. Mittal, learned counsel for the appellant has submitted that the gift-deed Ex D-2 had been got executed by fraud. The appellant had been deprived of her entire property. Accordingly, it is null and void and the suit filed by the appellant deserves to be decreed. On the other hand, learned counsel for the respondents have submitted that the execution of the gift-deed is duly proved. The evidence produced on behalf of the defendant respondents clearly shows that the appellant had executed the gift deed of her own volition and that the judgment and decree passed by the lower appellate court calls for no interference.
8. The first question that arises for consideration is – Did the appellant executed the gift deed Ex. D-2 ? It is the admitted position that the appellant is aged and old. She is a widow. It is also the admitted position that she had implicit faith and confidence in respondent-Chuhar Singh. In fact, it is admitted that he usually accompanied her when she went out of her house. On May 26, 1975, respondent No. 1 had accompanied her to the office of the Sub Registrar, Sunam, where sale deed in respect of 16 kanals had to be executed in favour of Dalip Singh etc. On the same day, the gift-deed Ex. D-2 was also executed. Even in this gift deed it was acknowledged that the appellant was old and that she had no issue. She was being looked after by Chuhar Singh who had been staying with her for the last about 8 years like a son. It was also mentioned that she had even got him married and being pleased with his services, she wanted to reward him. Accordingly, the gift deed was executed. It was written by Jiwan Lal, a petition writer, who had appeared as D.W-2. According to the evidence on record, the gift deed was read out to her and she had put her thumb impression only after hearing the contents and finding them to be correct. The execution of the deed was duly witnessed by Dalel Singh and Sukhdev Singh. Thereafter, the gift deed was got Registered with the Sub Registrar, Sunam, on the same day. The scribe also produced his register. It appears that the appellant had executed three documents on that day. The first of these was the sale deed in respect of 16 kanals of land in favour of Dalip Singh. It was entered at serial No. 315. She had also executed a power of attorney in favour of Sher Singh. This was entered in the register of the scribe at serial No. 317. Lastly, she had executed the gift deed in question. It was also duly entered in the register of the scribe. The document was duly registered. Besides the scribe, one of the attesting witnesses Dalel Singh has appeared as D.W-6.
9. On a perusal of the evidence on record, it is clear that the scribe of the deed as well as one of the attesting witnesses have appeared. Their evidence shows that the gift deed had been duly executed by the appellant. In this connection, it deserves notice that Jiwan Lal, D.W-2 categorically stated that he had read out the contents of the gift-deed to Smt. Jasmer Kaur. She had admitted the document to be correct and thumb marked it. During cross-examination, there is not even a suggestion of any fraud or that she had not instructed him to write the gift deed. If she had actually not got the gift deed written, or if it was not a voluntary act on her part, it would have at least been suggested to the witness that the gift deed was written by him at the asking of respondent-Chuhar Singh or that he was making the statement in connivance with respondent No. 1. Nothing of the sort was suggested.
10. Keeping in view the fact that the appellant herself has admitted in the plaint that she had a lot of confidence in Chuhar Singh, it is likely that being pleased with the services rendered by him to her, she had executed the gift deed. In any event, it is proved on the record that the gift deed was duly executed.
11. Still further, besides the above, nothing has been brought on record to show as to how the appellant had been defrauded. Surely, if respondent. No. 1 was bent upon getting the gift deed executed by foul means, he would have to seek support from the stamp vendor, the scribe and the attesting witnesses. The scribe has appeared as a witness. Nothing has been pointed out to show that the necessary ingredients-of fraud exist. The mere fact that the appellant had gifted a sizable amount of property to respondent No. 1 does not mean that she had been defrauded. In the plaint, there is a suggestion that the purchase of stamp papers etc. had been organised by lespondent No. 1. Fraud had to be proved by the appellant. There is no evidence which may even remotely indicate that she had been defrauded.
12. It was also suggested on behalf of the appellant that the execution of the gift deed on the day on which the appellant had sold 16 kanals of land shows that the respondent had utilised the opportunity to defraud her. The contention has been controverted by the learned counsel for the respondent. It is the admitted position that the appellant is very old. The possibility of her executing three deeds on one day on account of the fact that she would not have to visit the officer of the Sub Registrar separately on each occasion cannot be ruled out.
13. No other point has been urged.
14. In view of the above, no ground for interference in the second appeal is made out. However, keeping in view the fact that the respondents had voluntarily made an offer to pay Rs. 1.5. lacs for the maintenance of the appellant, I think it would be appropriate that they abide by their undertaking. Consequently, the judgment and decree passed by the learned lower appellate Court are affirmed. The suit of the plaintiff-appellant is dismissed and the gift deed in favour of respondent No. 1 and the sale deed in favour of respondents 2 to 5 are upheld. However, since it is the case of the respondents themselves that the appellant had executed the gift deed out of love and affection for Chuhar Singh, it is only fair that they also provide something for her maintenance. Therefore, they would be bound to abide by their offer of paying Rs. 1.5. lacs to her. Learned counsel for the respondents undertake to deposit the amount in this Court on or before May
15, 1996. Let this money be deposited.
15. The appeal is decided in the above terms.
16. No costs.