KOTHARI, J. - (1.) THE suit filed by Kanha Meena son of Shri Kishan Meena for cancellation of gift deed whereby he is alleged to have gifted away his entire immovable and movable property to his daughter's son Kalu, was dismissed by the learned District Judge, Bundi by the impugned judgment dated 5. 3. 1986 and being aggrieved by the same, the plaintiff Kanha (since deceased) is in appeal before this Court.
(2.) KANHA at age about 65 years is said to have executed Ex. A. 1 gift deed on 28. 1. 1972 in favour of defendant Kalu who was minor of about 12-13 years and was son of eldest daughter of KANHA Smt. Keshar wife of Bhanwar Lal and the said gift deed (Bakhshishnama) was drafted by Kapur Chand Nuwal, Advocate DW. 5, on 28. 1. 1972 when Smt. Keshar and her husband Bhanwar Lal, defendant Nos. 2 & 3 along with defendant No. 1 Kalu brought the plaintiff KANHA to Bundi when he was suffering from some illness as he was living in village Maija, they came for treatment of plaintiff KANHA to nearby town Bundi and got the said gift deed executed and signed by thumb impression by plaintiff KANHA. By the said gift deed the entire property belonging to plaintiff KANHA including the agricultural land of about 54 bighas and one residential house valued at Rs. 10,000/- were given in gift to his his minor grand-son defendant Kalu. It may be stated here that the plaintiff KANHA had other three daughters also Smt. Gopali, Smt. Kisturi Bai and Smt. Prem Bai who did not have any issue at that time and his own wife Smt. Modi Bai. He had no male issue and the husband of Smt. Keshar and the said daughter were living in the house of plaintiff KANHA only and, therefore, out of natural lone and affection for the only grand-son defendant Kalu, the said gift was made in his favour. The plaintiff came with the case before the court that he was never informed as to the character of document and whether it was a gift deed or a will and since he was seriously ill around at that time when he was brought to Bundi by the said defendants Smt. Keshar, his eldest daughter and her husband Bhanwar Lal, they promoted him to execute the necessary document in favour of their son defendant Kalu for transferring his entire property in favour of defendant Kalu because Kanha was seriously ill and lest something happens to him, he should execute such deed at that time. The said person Kanha being illiterate and old man of about 65 years at that time though had natural love and affection for his grand-son defendant Kalu was thus led to execute the said deed Ex. A. 1 but according to the plaintiff he categorically stated to the defendants as well as Advocate DW. 5 Mr. Kapur Chand Nuwal that his property during his own life time shall remain with him and after his death should go to defendant Kalu. In the plaint the plaintiff had also stated that earlier he had executed a will in favour of his daughter Smt. Keshar but on account of misbehavior by the said daughter towards him, he had cancelled the said will by tearing it apart. The case further in the plaint is that after few years of the said event the defendants started misbehaving and ill- treating plaintiff Kanha and did not take any care of his food and other requirements and the defendant Kalu had even filed a suit on 30. 9. 1980 in respect of the said property seeking injunction against disbursing his possession and enjoyment of the said property against Kanha and other daughters of Kanha. In the meanwhile the other daughters were also blessed with children. The plaintiff, therefore, claimed in the plaint that he came to know of the said document Ex. A. 1 to be a gift deed only on 12. 12. 1980 when he applied for a certificate copy of the said document and obtained the same from the office of Registrar where the said gift deed during the contemporary period was registered on 29. 1. 1972 itself and, therefore, he wanted cancellation of the said gift deed which he never intended to execute as gift deed but at that time had explicitly made it clear that it should be a will from his side. He further claimed that the said document was got executed under undue influence by the eldest daughter Smt. Keshar in whose active confidence the plaintiff was without disclosing the true character of the document nor the same was read over or explained to him by the person who drafted the same namely DW 5 Kapur Chand Nuwal, Advocate and, therefore, the said document deserves to be cancelled. The said plaintiff unfortunately died during the pendency of this appeal on 18. 5. 1988 whereas this appeal was failed in this Court on 30. 6. 1986 and thereafter the legal heirs namely the wife and three other daughters were taken on record by the order of this Court dated 15. 11. 1988. Later on wife of Kanha Smt. Modi Bai and defendant No. 3 Smt. Keshar are also said to have died and, therefore, their names were deleted from the array of appellants/respondents by order dated 25. 1. 2006. In the meanwhile part of the said agricultural land is said to have been sold by defendant No. 1 Kalu in favour of Gopal, Smt. Pushpa and Chhitar and on an application under Order 1 Rule 10 CPC, they were also impleaded as respondents in this appeal vide order dated 10. 1. 1989.
(3.) THE said suit for cancellation of the gift deed was dismissed by the learned District Judge as aforesaid. Five issues framed by the learned trial Court were as under:- (1) "whether the plaintiff had become seriously ill 10 years prior to filing of the suit and for his treatment had come to Bundi? (2) Whether during the said illness the plaintiff asked the defendant Smt. Keshar and Bhanwar Lal to get executed his will in favour of defendant Kalu but these defendants by fraud got executed instead a gift deed which came to the knowledge of the plaintiff on 12. 12. 1980? (3) Whether the plaintiff continued to remain in possession of the disputed agricultural land and the residential house? (4) Whether the court had jurisdiction to try the suit for permanent injunction in respect of the agricultural land in question? (5) Relief?" The learned trial Court decided issue No. 1 against the plaintiff holding that the plaintiff had failed to prove that about 10 years prior to filing of the suit he had fallen seriously ill and had come to Bundi for his treatment. The issue No. 2 was decided against the plaintiff holding that the plaintiff had failed to prove that the defendants had got executed the gift deed in the state of serious illness and either he had asked the defendants Smt. Keshar and Bhanwar Lal to get executed a will in favour of defendant Kalu but they by fraud got executed a gift deed. The issue No. 3 was decided by holding that the plaintiff solely was not in possession of the agricultural land and residential house in question and both defendant Kalu and plaintiff were in joint possession of the said property and for last 1 1/2 years the plaintiff was not in possession. The issue No. 4 regarding jurisdiction was not pressed, therefore, the court decided that the court has jurisdiction to try the suit. Accordingly, the suit was dismissed. ;