1. This is defendants' second appeal against whom the suit for declaration and possession was dismissed by the trial Court, but decreed in appeal.
2. The plaintiff-respondent Atma Singh filed the suit for declaration to the effect that he was in possession of the suit land as the owner after the cancellation of the gift deeds dated Jan. 12, 1977, in the names of defendants Nos. 1 to 3. It was alleged that the plaintiff was the owner in possession of the land measuring 14 kanals and 12 marlas. He was an old man and it was difficult for him to move about. His eyesight was also weak. Charna alias Charan Singh, the father of the defendants, was a man from baradari and not a collateral. He was very intimate with him. He requested him to look after his property and came to the tehsil headquarters for the execution of the special power of attorney in his favour at his instance and pursuation; he himself being an old man with feeble health and weak eyesight. Charna, father of the defendants, taking advantage of his weakness fraudulently got executed the gift deed dated Jan, 12, 1977, in the names of his sons, defendants Nos. 1 to 3. Charan Singh, the father of the defendants, mis-represented the facts as regards the gift deeds and told him that the papers related to the special power of attorney in his favour about his land. He signed the documents i.e. thumb marked under the impression that he was signing the papers in regard to the special power of attorney in favour of Charan Singh. In these circumstances, it was alleged that the said Charan Singh had committed fraud upon him by playing a ruse on his innocence and by taking advantage of his weakness and simplicity. The gift deeds executed by him in favour of defendants Nos. 1 to 3 were null and void and were infructuous against his interest. In the written statement filed on behalf of the defendants, it was pleaded that they were the collaterals of the plaintiff. Though it was admitted that the plaintiff was an old man, yet it was asserted that he was hale and hearty. He was said to be a very shrewed man; a professional litigant and a Court bird who was very much conversant with the Court and the tahsil procedures. The father of the defendants was also a collateral of the plaintiff and that the defendants and their father had been serving him for the last so many years. It was out of love and affection that the plaintiff had executed the gifts deed in their favour which were complete and irrevocable. On their basis, even the mutation had been sanctioned in their favour. It was further alleged by them that the gift deeds were executed voluntarily. The trial Court found that the execution and the validity of the gifts was proved and that the defendants in pursuance of the same were in actual cultivating possession of the suit land. According to the trial Court, no legitimate suspicion surrounded the execution or the validity of the gift deeds. In view of this finding, the plaintiff's suit was dismissed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and held that the gift deeds were got executed by fraud and misrepresentation played by Charan Singh upon the plaintiff. Consequently, the plaintiff's suit was decreed. Dissatisfied with the same, the defendants have filed the present second appeal in this Court.
3. The learned counsel for the appellants contended that no particulars of the alleged fraud played by Charan Singh, the father of the defendants, on the plaintiff have been given in the plaint, nor there was any cogent evidence on the record to prove the alleged fraud or mis-representation, if any. According to the learned counsel, the alleged fraud is to be established beyond reasonable doubt. Mere creating the suspicion as such would not amount to fraud or mis-representation. In support of the contention, the learned counsel relied upon Krishnaswami v. Kamalamma, Air 1941 PC 90 and Union of India v. M/s. Chaturbhai, 1976 Cur LJ (Civ) 166: (AIR 1976 SC 712). It was further contended that the mutation was sanctioned in the present case in favour of the defendants on the basis of the gift deeds. The palintiff was an active person having litigation in about 25 cases. Therefore, the question of any mis-representation or fraud having been played upon him by their father did not arise. The gift deeds in their favour were executed for the services rendered by their father Charan Singh to the plaintiff. Moreover, the present suit was filed on Feb. 19, 1978, i.e., about a year after the execution of the gift deeds. An argument was also raised that the plaintiff has to succeed on the strength of his own case and not on the weaknesses of the defendants' case. On the other hand, the learned counsel for the plaintiff-respondent submitted that the gift deeds executed by the plaintiff were not voluntary as contemplated under S. 122 of the Transfer of Property Act, (hereinafter called the Act). Moreover, the lower appellate Court after discussing the entire evidence has given a firm finding in favour of the plaintiff and, thus, it being a finding of fact, could not be interfered with in second appeal.
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 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--
'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.
Acceptance when to be made--Such acceptance must be made during the lifetime of the donor and while he is capable of giving.
If the donee dies before acceptance, the gift is void'.
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 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.
5. Consequently, this appeal fails and is dismissed with costs.
6. Appeal dismissed.