DEBI PRASAD Vs. CHHOTEY LAL
HIGH COURT OF ALLAHABAD (FROM: LUCKNOW)
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Lakshmi Prasad, J. -
(1.)THIS is a defendants' second appeal arising out of a suit for cancellation and possession.
(2.)THE suit giving rise to this appeal was filed by one Chhotey Lal and his wife Smt. Tulsa. THE defendants in the suit, who are appellants, are Debi Prasad and his wife Smt. Bitti. Debi Prasad is admittedly a grandson of the own brother of Chhotey Lal. During the pendency of this appeal both Chhotey Lal and Smt, Tulsa died. Smt. Tulsa died leaving Chhotey Lal as her sole heir and on the death of Chhotey Lal respondents Nos. 1 to 4 have been impleaded as his heirs.
The suit was filed on the allegation that in November 1954 when Smt. Tulsa fell ill appellant No. 1 offered his help to the plaintiffs who were old, infirm and weak and had none to look after them. They accordingly welcomed the help of Debi Prasad appellant No. 1 and sometime thereafter they agreed to execute a will in respect of their only property, namely the house in dispute, with the result that on 17th December, 1954, they actually executed a deed under the belief that it was a deed of will. Subsequently when appellant No. 1 ill-treated them they discovered on getting the deed read out to them that the suit was filed praying for the cancellation of the deed on the ground that the plaintiffs had been defrauded to execute it. There was also a prayer for possession on the allegation that a portion of the house in suit was in occupation of the appellants.
The claim was contested by the appellants mainly on the ground that out of natural affection and love the plaintiffs executed the deed of their free will knowing it full well that it was a deed of gift. According to the allegations in the written statement appellant No. 1 who is a grandson of the own brother of Chhotey Lal, lived with the plaintiffs since his childhood and that is why the plaintiffs, who had no issue, executed a deed of gift of their own volition in favour of appellant No. 1
(3.)THE trial Court held that the plaintiffs had failed to prove the case of fraud set up by them and accordingly dismissed the suit. On appeal by the plaintiffs the first appellate court came to the conclusion that even though there was no satisfactory evidence to prove fraud it was clear from the evidence on the record that the plaintiffs never intended to execute a deed of gift and as such they were entitled to the relief of cancellation asked for. THE relief for possession was not pressed in appeal on the ground that the appellants had already vacated the house Accordingly the first appellate court allowed the appeal and decreed the claim for the cancellation of the deed of gift referred to above. It is in these circumstances that the defendants have come up in second appeal.
I have heard learned counsel for the parties at some length. The main contention of the learned counsel for the appellants is that in view of the finding recorded by the first appellate court that the plaintiffs had failed to prove their case of fraud the decree for cancellation passed by it cannot be justified. Elaborating his argument learned counsel proceeds to urge that as required by Order VI, Rule 4, C. P. C. the party pleading fraud, coercion or undue influence has to give particulars thereof and has to be confined to the proof of those very particulars. He urges that a perusal of the plaint would show that it fails to furnish particulars of the alleged fraud and does not raise any case of undue influence or misrepresentation. In support of his contention that particulars must be given whenever fraud, undue influence or coercion is pleaded learned counsel places reliance on the case of Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280. In this connection he places reliance on the observations made in paragraphs 24 and 25 appearing on p. 283 of the report.
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