NISHAMANI SINGH Vs. NISHAMANI DIBYA

JUDGEMENT

(1.) The plaintiff in O.S. No. 17/11 of 1980/78-1 is the appellant against the dismissal of her suit for declaration of right, title and interest over the suit land on the strength of a registered gift deed dated 26-7-71, vide Ext. 1, executed by the defendant/respondent No. 1, for confirmation and/or recovery of possession.

(2.) The appellant's case in the trial Court is that originally the suit property belonged to the husband defendant-respondent No. 1. Since her husband died issueless, defendant No. 1 as the sole successor enjoyed the suit property by remaining in exclusive possession thereof. There was none to look after her property and whenever she used to fall ill, the appellant who is her maternal niece, used to look after her. So, the appellant went to defendant-respondent No. 1's house and started nursing her. Gradually, the defendant-respondent No. 1 reposed faith and confidence in the plaintiff-appellant. Accordingly, the defendant No. 1 voluntarily executed a registered gift deed dated 26-7-71 in favour of the plaintiff vide Ext. 1 after the contents of the said gift deed were read over and explained to her and she having understood the contents to be correct before execution and registration of the same. She delivered possession of the suit property immediately after execution of the documents. So the right, title and interest over the suit property had vested in the plaintiff. She also started collecting paddy from the suit land and making necessary annual repairs of the gifted house. While the appellant continued to stay in the house of the donor/respondent No. 1, the defendant No. 3 who was then reading in Khurda College requested her to let out a room. Accordingly he stayed as a tenant on a monthly rental at Rs. 50/-. The appellant used to bear all the expenses of respondent No. 1. After some time, it appeared that the plaintiff had taken ill and was required to come to Cuttack for her treatment. Taking advantage of her temporary absence, defendant No. 3 gained confidence of defendant No. 1 on account of her old age and solitary living and got the gift deed cancelled by executing another deed of cancellation on 25-11-1975 and also simultaneously got a trust deed executed on 31-5-76 in favour of the family deity of defendant No. 1 in respect of the suit property describing defendant No. 3 as the trustee. It is alleged that after the gift deed was created in favour of the plaintiff, defendant No. 1 had no further right, title and interest over the suit property so as to create a trust deed on 31-5-1976. Since such a document is invalid, unlawful and inoperative in law and was created for the purpose of defeating the plaintiff's right, she, therefore, filed a suit for declaration of her right, title and interest and consequently cancellation of the trust deed dated 31-5-76 and for delivery of possession of the suit property.

(3.) The respondent Nos. 1 and 3 have filed a joint written statement whereas respondent No. 4 filed a separate written statement, but, in the light of the written statement filed by respondent No. 1 it has been alleged in their written statements that the gift deed dated 26-7-1971 was not voluntarily executed, but it was fraudulently obtained by making a false representation that the defendant No. 1 would execute a power of attorney in favour of plaintiff's husband to look after the suit property. The further plea taken by defendant-respondent No. 1 is that she had never consciously executed the gift deed in favour of the appellant and there was no valid attestation as required under law. The other plea by the respondent No. 1 was that she could only detect the fraud when the plaintiff claimed ownership over the suit property on the strength of the purported deed of gift which according to her was meant to be only a power of attorney. The defendant No. 1 had, therefore, felt the necessity for cancellation of document. There was no delivery of possession pursuant to the execution of the said gift deed. Defendant No. 3's plea is that on 31-5-1976, the defendant No. 1 created a trust deed in favour of the family deity appointing defendant No. 3 as its trustee as he was a disciple of her Gurudeb Professor Radha Charan Das. The defendant No. 1 notwithstanding the execution of the trust deed, dated 31-5-76 as usual exercised her right of ownership over the suit by selling some paddy lands to defendant No. 4 for a consideration of Rs. 13,000/- and delivered possession of the same to defendant No. 4. Since, the document dated 26-7-1971 purported to be a gift deed alleged to have been executed by defendant No. 1 was an out-come of fraud, misrepresentation and inducement, therefore, no right had accrued to the appellant. With the above pleadings, the respondents prayed for dismissal of plaintiff's suit.