NIRMALA DEVI Vs. CHANDRAWATI DEVI

JUDGEMENT

(1.) Present second appeal has been filed by the defendant appellant Smt. Nirmala Devi assailing the judgment and decree dated 13.1.2000, passed by District Judge, Maharajganj in Civil Appeal No. 50 of 1997 which has its genesis in judgment and decree passed by Civil Judge (J.D.), Maharajganj, dated 25.10.1997, passed in Suit No. 57 of 1995. The impetratory relief sought by the defendant appellant is to set aside the judgment and decree dated 13.1.2000, passed by District Judge Maharajganj in Civil Appeal No. 59 of 1997, restore the judgment and decree dated 24.10.1997, passed by the Civil Judge (J.D.), Maharajganj in Suit No. 57 of 1995 and dismiss the plaintiff's suit with costs throughout.

(2.) The bone of contention in the instant case are the two gift-deeds which according to the defendant appellant were executed by the plaintiff one in favour of the three defendants namely, Smt. Nirmala Devi, Smt. Meera Devi and Smt. Usha Devi. Subsequently, plaintiff instituted the suit seeking cancellation of gift deeds dated 4.10.1994 in regard to plot Nos. 626 and 825 situated at Mauja Rautar, Tappa Khas, Pargana Tilpur Tahsil Nichlaul district Maharajganj registered on 25.10.1994 and 14.11.1994 which according to the plaint allegations were obtained by playing fraud upon him by the husband of Smt. Nirmala Devi. According to plaint allegations, no issue was born out of union of plaintiff and Smt. Chandrawati and therefore, the plaintiff tied nuptial knot with one Smt. Kailashi who had a daughter from her earlier husband namely, Smt. Nirmala. Out of union of plaintiff and Smt. Chandrawati, two daughters were born namely Smt. Meera Devi and Smt. Usha Devi defendants 2 and 3 respectively. It is alleged that Ram Narain husband of Smt. Nirmala Devi who was present at his bed-side, divulged to him the dreaded news that he was afflicted with a serious disease and he would hardly survive 15 days which instilled fear in him and being scared he articulated a desire to Ram Narain to initiate process for execution of Will in favour of Smt. Chandrawati attended with a proviso in the Will that heirship would devolve upon the defendants after the death of Smt. Chandrawati. It is further alleged that Ram Narain instead of acting on dotted line, got prepared a gift deed and the same was registered which the plaintiff never intended to do. It is in the above perspective that the suit was instituted and gift deeds were sought to be rescinded. On the other hand, two set of written statements were filed one by Smt. Nirmala Devi and the other by defendants 2 and 3. Smt. Nirmala Devi repudiated the plaint allegations and averred that the plaintiff had desired execution of gift deeds and the gift deeds were rightly executed by the plaintiff. On the other hand, defendants 2 and 3 underpinned the plaint allegations averring that Ram Narain husband of defendant No. 1 who was a disingenuous and calculated person, practised fraud in obtaining gift deeds from the plaintiff instead of Will in favour of wife of the plaintiff.

(3.) The trial court upon appraisal of evidence on record, decreed the suit in part and rescinded the gift deeds to the extent of 2/3rd share. It would appear that Smt. Chandrawati Devi plaintiff, who was brought on record in the wake of death of Muttur Das, original plaintiff alone preferred civil appeal assailing that part of the decree by which suit was dismissed to the extent of 1/3rd share of defendant No. 1. The lower appellate court allowed the appeal and pronounced the gift deeds void and in consequence, directed the Sub-Registrar concerned for compliance of the judgment. It is in this backdrop that present second appeal has been filed by Smt. Nirmala Devi.