PRABHOO SINGH Vs. BANI SINGH

JUDGEMENT

(1.) This is a defendant's second appeal against the judgement and decree of the First Appellate Court dated 2.3.1978 by which the plaintiff's first appeal was allowed and the suit was decreed in to. The suit was filed with a relief that the gift deed, as was executed by the plaintiff no. 2 in favour of defendant no. 2 to 6, be declared null and void on the ground that there was a family settlement dated 7.1.1973 by which the plaintiff no. 2 (father) had divided five bighas of his property between the plaintiff no. 1 and defendant no. 1 (sons) and therefore the gift deed dated 23.3.1973 by which the entire property of the plaintiff no. 2 was gifted to defendant nos. 2 to 6 (sons of defendant no. 1) could not have been executed. Further case of the plaintiff no. 1 was that the gift deed in favour of the defendant nos. 2 to 6 dated 23.3.1973 was obtained from the plaintiff no. 2 by misrepresentation, fraud and by exercising undue influence.

(2.) The trial court dismissed the suit but the First Appellate Court allowed the appeal and cancelled the gift deed. The instant second appeal was entertained after framing the following substantial questions of law:-

(3.) The appellants who are the defendant nos. 2 to 6 (Donees) submitted that the father of the plaintiff no. 1 and defendant no. 1, who has been arrayed in the suit as plaintiff no. 2, Sri Shiv Lal in the presence of a number of witnesses had tried to transfer 5 bighas of his land to his two sons, the plaintiff nos. 1 and defendant no. 1 by a document dated 7.1.1973. They submitted, that though, in the suit the plaintiff no. 1 has referred to this document dated 7.1.1973 as a family settlement, it is in fact a document by which 5 bighas of land of the plaintiff no. 2 was actually sought to be transferred to the plaintiff no. 1 and defendant no. 1. If the document itself is perused, it would be clear that it is not a family settlement nor is it a memorandum of partition but is a document by which the plaintiff no. 2 has endeavored to transfer 5 bighas of his land to plaintiff no. 1 and defendant no. 1. The Appellants' counsel read out the following portion of the document dated 7.1.1973which reads as under:- ...[VERNACULAR TEXT OMITTED]...