- (1.) Defendant-appellant Bachan, born out of wedlock of Jagardeo and Smt. Muneshari, has filed the present second appeal, challenging the judgment and decree passed by the trial court in Original Suit No.390 of 1981 dated 18.3.1983, affirmed in appeal vide order dated 30.4.1986, decreeing plaintiff's suit for cancellation of gift deed dated 5.2.1959.
(2.) Original suit has been instituted on 11.9.1980 by Jeodhan Prasad, the original plaintiff, (hereinafter referred to as 'plaintiff') for cancellation of gift deed dated 5.2.1959 executed in favour of eldest sons of his three daughters, namely Bachan son of Smt. Muneshari, Kamta son of Smt. Duleshari, Kunj Bihari son of Smt. Shanti Devi. In the suit Kamta, Bachan and Kunj Bihari were the once arrayed as defendants. As per plaint, the suit property consisted of residential house constructed by plaintiff. It is stated that one of the daughters of plaintiff, namely Smt. Shanti Devi, had got a gift deed executed from the plaintiff on 4.3.1980, in respect of part of agricultural land of the plaintiff, while the plaintiff had gone to execute a will. When such fact came to the notice of the plaintiff, he asked his daughter Smt. Shanti Devi to get the gift deed cancelled, but she refused to do so, and she also stated that plaintiff no longer has any concern or ownership over the house and that he may disassociate himself from the house also. Plaintiff alleges that he was shocked and on a necessary inquiry, he came to know from the office of Sub Registrar that in the year 1959 when he had gone to executed a will, the respective mothers of the defendants had got a gift deed executed on 5.2.1959. Consequently, plaintiff instituted two suits on consecutive dates i.e. Original Suit No.295 of 1981 was filed on 10.9.1981 for cancellation of gift deed dated 4.3.1980, executed in favour of Smt. Shanti Devi, whereas Original Suit No.390 of 1981 was filed on the very next day on 11.9.1981 for cancellation of gift deed dated 5.2.1959. The Original Suit No.295 of 1981 was dismissed by the trial court, but has been decreed in Civil Appeal No.292 of 1982, against which Second Appeal No.1939 of 1986 has been filed, whereas Original Suit No.390 of 1981 has been decreed by both the courts below, against which the present Second Appeal No.1736 of 1986 has been filed. Both the appeals have been heard together and are being decided by separate judgments delivered in respective appeals.
(3.) The Second Appeal No.1939 of 1986 has been decided first, vide order of date, observation made by this Court, while deciding the aforesaid appeal, have material bearing upon disposal of the present appeal as well inasmuch as plaint of the present suit refers to filing of previous suit and, as such, para 10 to 13 of the said judgment are reproduced:- "10. Having considered the submissions raised and upon perusal of the material brought on record, it is undisputed that a gift deed was executed in favour of the defendant, which was registered on 4.3.1980. The suit for cancellation of the gift deed has been filed on 10.9.1981, which is almost after one and half year. In para-18 of the plaint, the ground taken for cancellation of the gift deed is that plaintiff is an old person, who is not in good health and, therefore, taking advantage of it, the gift deed has been got executed, although he intended to execute a Will. In the plaint, however, there is no case set up by the plaintiff that on the relevant date, he was suffering from high fever and on account of his ill health, he had not been able to understand the contents of the registered deed. The statement made in Para-18 A of the plaint is reproduced below:- 587536-1 11. The aforesaid statement clearly goes to show that what is stated in the pleading is the fact that the plaintiff is old person and is not keeping in good health. There is no statement in the plaint that on the relevant date, he was not well or was suffering from high fever. There was no case set up in the plaint that plaintiff because of his illness had not understood the contents of the document or his ability to understand was impaired. In the absence of any such circumstances having been pleaded, no amount of oral evidence suggesting high fever as a ground to impair his ability to understand could have been looked into. Law is settled that in the absence of pleading, no amount of evidence could be looked into. Order-VI Rule-4 stairs against the view taken by the lower appellate court. Legal position in this regard is well settled. Constitution Bench in Bishundeo Narain and another Vs. Seojeni Rai & others, 1951 AIR(SC) 280 observed as under in Para-25:- "It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6, rule 4, Civil Procedure Code." 11. It appears that the plaintiff had a residential house and apart from having certain agricultural properties. In respect of the house, he had executed a gift deed on 5.2.1959 in which the residential house has been given to the 3 sons of his 3 daughters equally, who were all minors at that point of time, under the guardianship of their mothers. In respect of the agricultural property also, the plaintiff appears to have executed a gift deed to Duleshari on 3.3.1980 and again a gift deed was executed on 4.3.1980 in favour of Smt. Shanti. In the oral statement, plaintiff stated that he neither intended to execute a gift deed in favour of Duleshari nor in favour of Shanti but a suit for cancellation of gift deed was filed only in respect of Shanti. It has further been noticed that the son of Duleshari i.e. Kamta has got an adoption deed executed in favour of his son from the plaintiff. In such circumstances, in the opinion of this court trial court was not unjustified in drawing an inference that the plea of the plaintiff that all his previous gift deeds were got fraudulently executed are not worthy of credence when plaintiff is educated and was a responsible officer with the Central Government. The lower appellate court has only taken note of one part of the statement of plaintiff that he was living with Smt. Duleshari and his son Kamta and on the basis of such statement, an inference has been drawn that the execution of gift deed in favour of Smt. Duleshari was justified whereas it was unjustified for Smt. Shanti. This reasoning of the lower appellate court cannot be sustained because in the statement, the plaintiff has clearly stated that he did not intend to execute a gift deed either in favour of Smt. Duleshari or in favour of Shanti, and as such the finding returned in this regard by the lower appellate court that gift deed in favour of Duleshari was obvious is contrary to the specific statement of plaintiff which was ignored. The statement of the plaintiff in his deposition before the trial court is reproduced:- 587536-3 It is admitted that no suit for cancellation of gift deed dated 3.3.1980 has been filed. The finding in this regard is based on no evidence and is perverse. The lower appellate court, more over, has not taken note of the fact that the plaintiff was an educated person who was holding a responsible post of Deputy Office Superintendent in the office of Central Government,and therefore, once it was admitted to the plaintiff that he had incorporated his signatures on the gift deed, which was registered, the inference that he had not understood its contents could not have been so lightly drawn. The lower appellate court has further failed to keep in view the settled principle that Trial Judge had the benefit of observing the demeanor of plaintiff who was clearly in a fine mental state when he deposed before the trial judge as has been recorded by the trial judge. The appearance and gesture of witness had relied upon by the trial judge to favour his conclusion, which benefit was not available to the appellate court. It would be worthwhile to refer to the decision of Prevy Council in AIR 1949 PC 32,relied upon in Sarju Prasad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh and others, 1951 AIR(SC) 120. Para-7 is reproduced:- "The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. appellants' favour . The High Court passed no opinion upon it having ruled as already stated on the issue of fact". 11. The submission advanced by the learned counsel for the respondent that the plaintiff wanted to give his land in equal proportion and that is why the gift deed was cancelled, also does not appeal inasmuch as the house property was given in equal proportion to the then minor sons of 3 daughters in 1959 and the plaintiff had executed separate gift deed in respect of agricultural land also but it was all being disputed after decades by filing suits on consecutive dates. The submission of the learned counsel for the respondent also cannot be accepted in view of the subsequent claim of adoption set up in favour of grand son of Smt. Duleshari i.e. Sanjai son of Kamta, which had the effect of excluding the rights of other 2 daughters. The object of giving property to the three daughters by way will stated in oral testimony is clearly contrary to materials available on record. 12. In view of the discussions made above, the substantial questions, noticed above, are answered by holding that in the absence of any specific pleadings made in the suit with regard to the gift deed having been executed while plaintiff was unwell and was running in high fever and thereby limiting his understanding, such an inference could not be drawn by the lower appellate court, keeping in view the provisions of Order-VI Rule-4 of the Civil Procedure Code. In the absence of specific pleadings about the nature of fraud played, the suit could not have been decreed. It is further observed that the plaintiff had not been able to prove his case and in view of the fact that the gift deed was registered and circumstances for its cancellation since have not been pleaded, the registration was a sufficient circumstance to indicate execution of the deed. Moreover, the oral statement of the plaintiff, noticed above, since has been ignored, as such, the judgment and decree of the lower appellate court could not be sustained and the last substantial question is answered accordingly. 13. In such view of the matter and for the discussions aforesaid, I am of the considered opinion that the lower appellate court has erred in law in setting aside the judgment and decree of the trial court and decreeing the plaintiff's suit. In view of the substantial question framed and answered above, the judgment and decree of the lower appellate court cannot be sustained and the same is set aside. The judgment and decree of the trial court is restored and the plaintiff's suit stands dismissed.";