Murlidhar, J. - (1.) This is a defendant's second appeal arising out of a suit for (i) possession after cancellation of the gift-deed, dated 21-3-68 executed by Munshi Lal in favour of Chhuttan Lal appellant and (ii) declaration that the plaintiff and defendants 2 to 7 are the owners of the property entitled to realise the rent of the same. The short hut rather neat point arising in the appeal is whether the plaintiffs' suit can succeed on the ground that the appellant Chhuttan Lal did not prove the gift-deed in accordance with Section 68, Evidence Act by examining an attesting witness.
(2.) The suit was filed on 17-4-68 during the lifetime of Munshi Lal who was arrayed as defendant No. 2 by daughter's children of Munshi Lal claiming to be his legal heirs. The prayer at that stage was for a declaration that the gift-deed in question (described as gift-deed executed (Iqrari) by Munshi Lal in favour of Chhuttan Lal) was not binding on the heirs. They alleged that Munshi Lal was a 95 years old and sick man who was not in proper control of his senses, that the appellant had taken him to Bulandshahr on the excuse of taking him for treatment and that the gift-deed had been secured and got registered fraudulently and through undue influence in collusion with the scribe and the witnesses. The grounds for attacking the gift-deed detailed in para 11 can be summarised as follows : (i) the appellant had abused the fiduciary relationship and exercised fraud and undue influence. (ii) Munshi Lal was not allowed any opportunity of cool judgment or independent advice about the transaction and the gift-deed was not executed or attested according to law. (iii) Munshi Lal did not sign or thumb-mark any document knowing it to be a gift-deed nor was the deed read over or explained to him or its effect intimated to him and (iv) the gift-deed was not the mental act of Munshi Lal. The other grounds are ancillary to these very points and suggestive of undue influence. It is significant that apart from the general allegation of fraud and the presumptive allegation of the gift-deed not being the conscious act of Munshi Lal owing to old age and infirm health no particulars of fraud were given in the plaint or for that matter even in evidence. In fact the learned counsel for the respondent fairly conceded that the grounds bearing on denial of execution may be Summarized by saying that the completion of the deed was not the mental act of Manshi Lal and the only evidence for this was circumstantial being the old age and health of the donor.
(3.) After the death of Munshi Lal pending the suit the plaint was got amended and in place of the declaration relief, the two reliefs of possession and declaration mentioned in the opening para were substituted. Here again the form of the relief for possession is important. It is not an independent relief but one linked to the relief of cancellation. The language is that after the cancellation of the gift-deed, dated 21-3-68 possession be delivered HIBENAMA. . . . . .MANSUKH KIYA JAKAR MUDDAIYAN KO DAKHAL MAL1KANA JAYADAD majKOOR PAR DILAYA JAYE). This has to be interpreted as meaning that the possession will only follow cancellation of the gift-deed. The appellant denied all the allegations and asserted that the gift-deed was valid. The trial court found the allegations of fraud and undue influence disproved and held that the gift-deed could not be challenged on these grounds. It, however, decreed the suit on the technical ground that the appellant having not examined any attesting witness to prove the gift-deed the same could not be used as evidence because it had been specifically denied by the plaintiff within the meaning of Section 68 Evidence Act. The lower appellate court has confirmed these findings. This view of the courts below is challenged in this appeal.;