N. C. SHARMA, J. - (1.) THIS second appeal was filed in this Court on October 4, 1976 by Premnath and Durganath against the decree of the Additional District Judge No. 2 Jodhpur dated March 23, 1976 affirming the decree of Civil Judge Jodhpur dated March 27, 1974 whereby plaintiff's suit was dismissed.
(2.) FACTS leading to the filing of the second appeal are that on June 1, 1967 Mst. Poorannath institute Civil Suit No. 232 of 1967 in the Court of" Munsif, Jodhpur against Jalam Singh respondent for cancellation of a relinquishment deed dated March 24, 1967 which was registered on March 27, 1967. It was alleged by Mst. Poorannath that there was a plot of land measuring 2250 square yards situated outside Sojati Gate on Kachhari Road, Jodhpur which had been purchased by her father Rawatji on Miti Baisakh Badi 8 Samvat 1948 and of which Rawatji obtained a patta on Miti Kartik Badi 12 Samvat 1957. After the death of Rawatji, the plaintiff and her mother Mst. Hastu became owner of this property as Rawatji had left no son. On July 7th, 1920 Mst. Hastu widow of Rawatji executed a will of this property in favour of the plaintiff and she became its exclusive owner. On November 13, 1931 she obtained patta No. 20 in her name from the Development Department of the former Government of Jodhpur. Thereafter she sold the eastern half portion of this land to Shivram Singh and others. An area of 500 square yards of land was acquired by the government of Jodhpur and the plaintiff obtained patta No. 3 with respect to the remaining land measuring 873/91 square yards on September 24,1943. In this patta she also got inserted the names of her disciples Haraknath and Durganath, although plaintiff alone was the owner of this land. It was alleged that since her childhood the plaintiff did not want to lead a family life and dedicated herself to the service of the Almighty and led the life of an ascetic. Jalam Singh defendant was related to her as her nephew and he used to arrange for loans for meeting the expenses of the plaintiff. On February 2, 1959 she executed a will in favour of her three disciples. The defendant came to know of this will and insisted upon the plaintiff for executing a will in his favour in respect of some portion of the land. Consequently on April 29, 1966 the plaintiff executed another will in which name of the defendant was also included alongwith her three disciples. As the defendants behaviour with the plaintiff and her disciples was not satisfactory, the plaintiff revoked her will dated April 29, 1966 and executed another will on December 13, 1966 in favour of her disciples and got the same registered. The defendant came to know of the will dated December 13, 1966 in the month of January, 1967 and insisted upon the plaintiff to restore the previous will dated April 29, 1966. In February, 1967 the plaintiff was indisposed and she told to the defendant that she will take appropriate measures after considering the matter after she regained health. However, the defendant continued. During the period from February 28, 1967 to April 2, 1967 the plaintiff was seriously ill and she was being treated by Dr. V. N. Mathur, a physician of Mahatma Gandhi Hospital Jodhpur. One Sunderlal was looking after the affairs of the plaintiff and her property but as his relation had expired. , he did not remain with the plaintiff between February 19, 1967 to April 5, 1967. The defendant taking advantage of the illness and indisposition of the plaintiff, brought a document to the plaintiff. He sent the disciples of the plaintiff outside and misrepresented to the plaintiff that he had brought a will on the lines of the plaintiff's will dated April 29, 1966 and the plaintiff may get it registered The document was not read over to the plaintiff and the defendant as against the will of the plaintiff, by holding her hand, got the document signed, some time thereafter on that very day, the defendant brought some officer from the office of Sub Registrar and clerks and the document was got registered without the same being read over to the plaintiff and the signatures of the plaintiff were got affixed on it by holding her hands. On account of her illness, the plaintiff was not instate of sound mind. When she recovered, she enquired from the defendant about the document. The defendant remained evasive and this raised suspicion in the mind of the plaintiff. The plaintiff was an old lady of 65 years and was illiterate and used to remain ill. On April 13, 1967 she came to know that the defendant had got a relinquishment deed executed without any consideration and had got it registered. The document was stated to be void. The plaintiff served upon a notice on the defendant stating all these facts. On the basis of these allegations Mst. Poorannath prayed that the document dated March 24, 1967 registered on March 27, 1967 be cancelled on the ground that the same was void. The suit was contested by Jalam Singh. He pleaded that the land measuring 2250 square yards was purchased by Rawatji and he had obtained patta in his favour. It was stated that Rawatji had taken the defendants father Vijay Singh in adoption because Rawatji had no male child. On the death of Rawatji, his adopted son Vijay Singh became owner of this property. It was denied that on the death of Rawatji, the plaintiff and her mother Mst. Hastu became owner. They could not became owners according to the law in force at the time of the death of Rawatji. The alleged will by Mst. Hastu in favour of the plaintiff was denied and her competency to make will was disputed. The obtaining of a patta by the plaintiff was also denied and, in any event, it was pleaded that the same had been obtained by practicing fraud. The defendant does not know if the plaintiff had transferred any portion of the property as he was minor, at that time, aged seven years. Mst. Hastu had affection for, her daughter and. therefore, she handed over possession of the property to the plaintiff. The defendant's father raised dispute but he was assured by the plaintiff that she would return the property to him. Vijay Singh believed upon the assurance of the plaintiff and, therefore, did not take any legal action, when the defendant became major, he asked the plaintiff to return the property but the plaintiff continued to evade by giving assurance. The defendant stated that the relinquishment deed had been executed by the defend in perfect health and after deliberations. It was denied by the defendant that she had fallen ill and was treated by Dr. V. N. Mathur;. It was also deniedant that any advantage was taken by the defendant or any misrepresentation was made by him to the plaintiff in the execution of the relinquishment deed. The draft of the relinquishment deed was prepared by Amba Shanker Vyas under instructions of the plaintiff. It was read over to her and executed out of her free will. She also admitted the execution before the Sub Registrar. The allegations regarding fraud misrepresentation or coercion were denied. The trial court framed two, issues in the suit, issue No. 1 was the corucial issue. After recording the evidence, it was held by the Civil Judge, Jodhpur that it was not sufficiently proved on the principle of preponderance of probability that the document Ex, A/1 was executed by the plaintiff Mst. Pooran Nath when she was not in Sound mind on account of her serious illness. It was also not sufficiently proved that the said document was executed by her under some force, misrepresentation or fraud. The Civil Judge held that the document was executed by her in her sound mind and with her free will. . On the basis of these findings the Civil Judge, Jodhpur dismissed the suit of the plaintiff. It may be stated that Mst. Poorannath had died during the pendency of the suit and Mst. Durganath and Mst. Premnath were substituted as her legal representatives. Aggrieved by the decree of the Civil Judge, Mst Premnath and Mst. Durganath filed Civil First Appeal No. 25 of 1974 which was dismissed by the Additional District Judge No. 2, Jodhpur on March 23, 1976. The Additional District Judge did not believe the evidence adduced by the plaintiffs and accepted the evidence of the defendant, Amba Shanker the scriber of the document and Ugam Singh, the attesting witness. He held that it was not established that Mst. Poorannath was ill or in a decate state of health or was under treatment of Dr. V. N. Mathur. He also took the aid of registration of the document by Sub Registrar. It appears that it was urged before the Additional District Judge on behalf of the appellants that the relinquishment deed was ineffective as the possession of the property was not handed over to the defendant. The argument was rejected on the ground that it was never the case of the plaintiffs in the plaint that the document was invalid because possession of the property had not been delivered to the defendant. That was the reason that no issue was framed on this point. It also appears on behalf of the appellants that one application was made before the Additional District Judge praying that they may be permitted to adduce additional evidence of Dr. Mathur and Sunderlal. This application was rejected by the Additional District Judge. Thus the Additional District Judge agreed the finding of the Civil Judge, Jodhpur and dismissed first appeal filed by Mst. Premnath and Mst. Durganath. Both* ladies filed the present second appeal in this Court. Both of them expired during the pendency of this appeal. On the death of Mst. Premnath, three sets of applicants claimed themselves as legal representatives of deceased Premnath. The matter was sent to the first appellate court to make an enquiry on the matter. The first appellate court reported that none of them were legal representatives of the deceased. To expedite the hearing of the matter and in view of the fact that substitution of the legal representatives was limited to the purpose of continuation of this appeal and it did not decide the rights in title interse of the three applicants with respect to the properties in the suit and there was no objection if all of them were implead as legal representatives of the deceased Premnath for the continuation of this appeal, according Hemnath. Purshottamlal. Kaviraj Ramdan were substituted as legal representatives of the deceased Poorannath by order of this Court dated November 16, 1988.
(3.) I have heard learned counsel for the parties in this second appeal. Mr. A. L. Chopra appearing for Hemnath urged that Ex. A/1 was not a release deed but was a will and the same stood revoked when Mst. Pooran Nath challenged it in this suit. He urged that Ex. A/1 was not a release deed because the defendant Jalam Singh had no pre-existing right in the property. Mr. U. R. Tatia for Purshottamlal urged that no property was transferred by Ex. A/1 to the defendant because possession of the property was not delivered to the defendant. He also urged that it was not established that Vijay Singh had been adopted by Rawatji. Lastly, it was urged that no issue relating to the delivery of the possession and adoption was framed by the trial court and, therefore, the case should be remanded. He also argued that the courts below did not consider the other evidence adduced on behalf of the plaintiff apart from the statement of Mst. Premnath. Mr. Reva Chand did not put forward any arguments. Mr. Gopal Ram Singhvi appearing for the defendant respondent urged that document Ex. A/1 was a release deed and that there was concurrent finding of the fact of both the courts below on issue No. 1 against the plaintiff's. It was urged that both the courts below have found that Mst. Pooran Nath had executed the document Ex. A/1 out of her free will and in a healthy and sound state of mind. The first question that arises is about the nature and character of the document Ex. A/1. This document has been described as tarknama. It was executed by Mst Pooran Nath in favour of Jalam Singh. The pedigree was given in the document in which it was shown that Anji had two sons named Laxman Singh and Rawatji, Rawatji had a daughter Mst. Pooran Nath and wife Smt. Hastu Bai. Laxman Singh had a son Vijay Singh. It was mentioned that Vijay Singh had been taken in adoption by Rawatji. Rawatji expired and Mst. Hastu had also expired in the year 1956. It was mentioned that Smt. Hastu Bai had great affection for her daughter Mst. Pooran Nath and on the death of Rawatji; she delivered the possession of the property to Mst. Pooran Nath despite objections on behalf of Vijay Singh who had been adopted by Rawatji. Prior to the year 1956, it was mentioned that on the death of a male member, his son succeeded to the property. In order to avoid a dispute being raised by Vijay Singh, he was assured that Mst. Pooran Nath will return the property to him, Vijay Singh accepted this assurance and expired subsequently. After the death of Vijay Singh the defendant also insisted for giving the property to him and Mst. Pooran Nath also gave the defendant the same assurance. It was then mentioned that according to Hindu Personal Law, as then in force, the defendant was the owner of the property but Mst. Pooran Nath had become owner by adverse possession. In order to put an end to the dispute raised by the defendant, Mst. Pooran Nath executed the document Ex. A/1 in favour of the defendant, it was mentioned that by this deed the defendant will be the owner of the property and Mst. Pooran Nath or her herself would have no right in the same. She also mentioned that she had removed her possession from the property and had delivered its possession to the; defendant. The defendant was given right to receive rents from the tenants and document concerning the property were also handed over to him. It was further mentioned that previously there were some 'kachi kotharis' where the property stands. Half of these kotharis' had been sold by Mst. Pooran Nath and by the amount received from such sale, she constructed the house by dismantling the kachi kotharis which had not been sold. In doing so, she incurred an additional expenditure of Rs. 500/-which was taken from the defendant. Lastly, it was mentioned by Mst. Pooran Nath that she had become considerably old and remains ill. She had served the family ties long back and had become an ascetic. It was recited that the defendant had served her sincerely and it was expected that he would continue to serve her. With these recital the document Ex. A/1 is alleged to have been executed by Mst. Pooran Nath. I may refer to the decision in Thayyil Mammo Vs. Kottiath Ram-muni (1 ). It was contended on behalf of the appellant in that case that document Ex B/2 was a deed of surrender and cannot be construed as a deed of assignment. The document in that case was registered and it was executed for a consideration paid by the defendants. It disclosed an intention to transfer the kanom rights to defendants No. 1 to 5 and operative words were capable of passing the title. It was that a registered instrument styled as a release deed regarding the right, title and interest of the executant in any property in favour of the release for valuable consideration may open as a conveyance, if the document clearly discloses an intention to effect a transfer. It was held that the document Ex. B/2 disclosed an intention to transfer all the rights to defendant Nos. 1 to 5 and though the word "surrender" was used and the deed was stated as release deed, it operated as an amendment. ;