1. On 16-3/1970. Tulsi Ram filed a suit against Sukhwinder Pal for a declaration that he was owner in possession of 96 Kanals 17 Marias of agricultural land detailed in the suit and challenged the gift deed dt. 30th Sept. 1968, which is alleged to have been executed by him in favour of the defendant, who is brother's grandson on the ground that the same was obtained by fraud or misrepresentation as he was an old man and it was represented to him by defendant that loan was being granted to the landowners and since he was of old age he should execute a power of attorney. Under the pretext of executing the power of attorney, thumb impressions on the gift deed were obtained, which did not bind him. Before obtaining thumb impressions the defendant administered milk in collusion with his father which contained some drug. In the gift deed it was mentioned that he had no male or female child although he had a daughter living. Even the wife living but no mention was made about her.
2. The defendant contested the suit and denied the plea of misrepresentation or fraud. He stated that the plaintiff was treating him as his son as he was serving him and the gift deed was executed on his own free will in lieu of services. The reason for not mentioning about the daughter was that the plaintiffs relation with his daughter and son-in-law were strained and they had obtained his thumb impressions on some document in order to fabricate valuable document to grab his property. He denied his presence at the time of execution of the gift deed.
3. During the pendency of the suit Tulsi Ram died and his daughter Smt. Sumitra Devi filed an application for being substituted as legal representative of the plaintiff. She also relied on will dt. 24th May, 1971 executed by her father-in her favour regarding his estate. The defendant set up a counter will dt. 20th Sept. 1968 alleged to have been executed by the deceased in his favour and the rival contentions were enquired into under O. 22 R. 5 of the Civil P. C and ultimately, the trialCourt found the will set up by the defendant to be forged and accepted the will set up by the daughter and also the fact that she was daughter of the deceased.
4. On the evidence led in the case, the trial Court found the gift deed having obtained by fraud and misrepresentation after administering some drug in milk on the pretext of obtaining some other documents. It also found that the gift was unconsionable. As a result the suit was decreed.
5. On defendant's appeal the lower appellate Court reversed the finding of the trial Court and dismissed the suit The plaintiff has filed this second appeal.
6. After hearing the counsel for the parties and on consideration of the record, I am of the view that the appeal deserves to succeed. The trial Court kept the correct legal principles in view in assessing the evidence whereas the lower appellate Court did not do so. Moreover, there has been misreading of evidence on material facts by the lower appellate Court, which resulted in the erroneous decision by it.
7. First dealing with the point of misreading of evidence, the trial Court raised adverse inference against the defendant because neither he appeared in the witness box nor produced his father to rebut the evidence led on behalf of the plaintiff that the gift deed was obtained by fraud and misrepresentation on the pretext of obtaining power of attorney to raise loan and that too after administering milk containing some drug. The lower appellate Court observed that the trial Court was wrong in saying that the defendant did not enter the witness box, whereas in fact he had appeared as a witness. The lower appellate Court also observed that the defendant had denied the allegation that milk was offered to Tulsi Ram before getting his thumb impressions on the disputed gift deed. On both these matters, the lower appellate Court has misread the evidence. The defendant did appear as a witness but in proceedings under O. 22 R. 5 of the Code to dispute the will set up by the daughter of Tulsi Ram and to support the will set up by him but not after legal representative wasbrought on record when question arose of leading evidence on behalf of the plaintiff to prove that the gift deed was obtained by fraud and misrepresentation because the defendant did not rebut the same by appearing himself or by producing his father. The defendant had appeared as RW 4 on 6th Oct. 1972 where his name is wrongly written as Sukhinder Pal defendant. I have gone through this statement of his but he did not state anything about the serving or non-serving of milk before the execution of the gift deed. In this behalf also, the lower appellate Court is wrong. The gist of his statement is that the deceased had strained relations with his daughter and that he was treated as grandson by the deceased and again said that he was his adopted son. Even in that statement he pleaded ignorance if Sumitra Devi was daughter of Tulsi Ram. Because of this misreading the matter has to be considered at length which is being tabulated below.
(1) Now it is beyond dispute that Tulsi Ram left behind his daughter Sumitra Devi and widow at the time of his death. In the gift deed it was mentioned that there was no male or female child. It is true that the daughter was married but if father were to recite he would not say that he does not have a daughter. He might say that his daughter was married and was sufficiently provided for;
(2) To cover up the recital in the gift deed that he does not have a female child, plea was raised that he had strained relations with his son-in-law and daughter as they wanted to forge some documents. No evidence in this, behalf has been brought on record nor any evidence that he had bad relations with them;
(3) In case he had bad relations with his daughter and/or son-in-law, he would have so stated in the gift deed, if the gift deed had emerged from him;
(4) It is beyond pale of controversy that Tulsi Ram was an old and infirm person and was living with the father of the defendant. The defendant and his father took benefit of his old age and infirmness, his living with them and fudiciary relationship and on the pretext of obtaining power of attorney, to obtain loan, got the gift deed executed.
(5) Even the wife of the deceased was alive. but in the gift deed there is no mention about her. Wife would have right of maintenance from the estate of the husband. No provision was made for her because her name was missing from the gift deed. No person would omit to mention the name of the wife. This further shows that the document alleged to be gift deed was procured by the father of the defendant. In Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878, certain principles have been highlighted, which have to be kept in view in appreciating the evidence in such matters. The trial Court kept these principles in view in appreciating the evidence whereas the lower appellate Court did not.
(6) The defendant and his father or some person near to him would have been present when the gift was sought to be made by the deceased or when it was actually executed. Neither defendant nor his father appeared in the witness box to support the pleas as to under what circumstances the deceased executed the gift deed and how did he exclude his widow and daughter. The reason is obvious that they did not want to be subject to cross-examination so that they are not exposed. Adverse inference was rightly drawn by the trial Court.
(7) Another important circumstance, which shows that the gift is fraudulent and was obtained by undue influence is clear from the plea set up that the donee was considered as a son by the donor and was his adopted son but these facts are missing. For adoption, there is procedure prescribed, which has to be followed. Then we have the next effort of grabbing the property by setting up a will which is alleged to have been executed 10 days before the gift deed. In the original written statement there was no mention of will by the deceased in favour of the defendant but after the death when daughter came forward to set up a will in her favour and also to plead that she was daughter, will dt. 20th Sept. 1968 was set up. The quick succession in which two documents dt. 20th Sept. 1968, the will, and 30th Sept. 1968. the gift deed rather go to show the anxiety on the part of the defendant and his father to grab the property of the deceased somehow or theother. If the deceased had really executed will dt. 20th Sept. 1968 and he was really to execute a gift in favour of the same legatee, he would have so mentioned in the gift deed. The absence of the will from the gift deed rather shows that the will was prepared long after the execution of the gift deed and was given a date prior to the gift to contest the will set up by the daughter.
(8) The defendant when he appeared as RV 4 in proceedings under O. 22 R. 5 of the Code pleaded ignorance of the fact that Sumitra was daughter of Tulsi Ram. If the defendant and his father were honest, this fact would have been admitted- The denial by pleading ignorance about this fact goes a long way to show their effort to grab the property of Tulsi Ram.
8. I am in disagreement with the lower appellate Court when it observed that for any wrong recital in the gift deed, the donee cannot be made to suffer. This observation has to be tested on the peculiar facts of the case. If in a given case the genuineness of the will or gift is accepted as having been executed by the real executant then no wrong recital made by the executant goes against the legatee or the donee but where the genuineness of the document is in question and it is found that the same was obtained by fraud and misrepresentation then the recital cannot be attributed to the executant and will have to be attributed to the person who wanted to obtain undue benefit by mentioning wrong facts. The lower appellate Court in a mechanical way considered the evidence and not with care and caution in which it should have done keeping in view the Supreme Court decision in Subhas Chandra Das's case (AIR 1967 SC 878} (supra).
9. On a reappraisal of evidence, the Witnesses produced on behalf of the plaintiff appear to be more reliable on the peculiar facts of this case than the witnesses produced on behalf of the defendant and I agree with (he trial Court in this behalf but not with the lower appellate Court.
10. For the reasons recorded above, the decision of the lower appellate Court aboutthe genuineness of the gift deed is set aside and that of the trial Court that it was obtained by fraud and misrepresentation is restored.
11. As a result the appeal is allowed and after setting aside the judgment and decree of the lower appellate Court those of the trial Court are restored with costs throughout.
12. Appeal allowed.