M.Y. Eqbal, J. - (1.) THIS appeal under Clause 10 of the Letters Patent is directed by the appellant against the judgment dated 26.9.2001 passed in F.A.No. 22/1986(R) whereby learned Single Judge allowed the appeal and set aside the judgment and decree passed by the trial court.
(2.) PLAINTIFF -respondents filed suit being Title Suit No. 64/1976 in the court of Sub -Judge, Garhwa for declaration that the deed of gift executed by one Kismati Devi on 2.9.76 in favour of defendant No. 1 is illegal and ineffective and the same did not confer title upon defendant No. 1. The facts of the case lie in a narrow compass: Kismati Devi was the wife of one Mathura Singh. She died leaving behind four daughters, namely, Brijbas Devi, Mukhraj Devi, Peyari Devi and Jaibas Devi. Her husband alongwith three daughters filed the aforesaid suit against fourth daughter, Brijbas Devi and her husband Rameshwar Prasad Singh for declaration that execution of deed of gift by Kismati Devi was not her conscious act and it was in -operative and ineffective document and did not confer any title upon defendant No. 1, Plaintiffs' case inter alia is that defendant No. 2, husband of defendant No. 1 manovered execution of gift deed fraudulently. Kismati Devi was seriously ill and was suffering from Cancer. Her condition detoriated day by day and on 30th August 1976 she became unconscious. In the meantime, defendant No. 2 proposed to take her to Varanasi for treatment on the plea that if she did not survive, her last rites would be performed there. On that pretext, she was brought to Garhwa to catch train for Varanasi, but instead of taking her to Varanasi, defendant No. 2 on 2.9.1976 got a deed of gift executed by her at Garhwa and, thereafter, brought her back to the village and announced that he could not arrange sufficient money and so she could not be taken to Varanasi. After few days Kismati Devi expired at village. Plaintiffs' further case is that defendant No. 2 obtained L.T.I. of Kismati Devi on the deed and for that purpose she was brought on the Varanda of Registry Office, Garhwa in a state of unconsciousness and mother of defendant No. 2 impersonated her before Registrar. The scribe managed the affairs in collusion with staff of the Registration Office.
(3.) DEFENDANT -appellants contested the suit by filing written statement stating inter alia that deed of gift executed by Kismati Devi was in sound state of mind and she was never seriously ill and was also not suffering from Cancer. Any proposal to take her to Varanasi for treatment or for performing her last rites there on her death was also denied. Defendants further case was that Kismati Devi willingly decided to give her properties to defendant No. 1 who is youngest daughter because she was not economically sound.;