AJMER SINGH Vs. ATMA SINGH

JUDGEMENT

(1.) This is defendants' second appeal against whom the suit for declaration and possession was dismissed by the trial Court, but decreed in appeal.

(2.) The plaintiff-respondent Atma Singh filed the suit for declaration to the effect that he was in possession of the suit land as the owner after the cancellation of the gift deeds dated Jan. 12, 1977, in the names of defendants Nos. 1 to 3. It was alleged that the plaintiff was the owner in possession of the land measuring 14 kanals 12 marlas. He was an old man and it was difficult for him to move about. His eyesight was also weak. Charna alias Charan Singh, the father of the defendants, was a man from baradari and not a collateral. He was very intimate with him. He requested him to look after his property and came to the tehsil headquarters for the execution of the special power of attorney in his favour at his instance and pursuation; he himself being an old man with feeble health and weak eyesight. Charna, father of the defendants, taking advantage of his weakness fraudulently got executed the gift deeds dated Jan. 12, 1977, in the names of his sons, defendants Nos. 1 to 3. Charan Singh, the father of the defendants, mis-represented the facts as regards the gift deeds and told him that the papers related to the special power of attorney in his favour about his land. He signed the documents i.e. thumb marked under the impression that he was signing the papers in regard to the special power of attorney in favour of Charan Singh. In-these circumstances, it was alleged that the said Charan Singh had committed fraud upon him by playing a ruse on his innocence and by taking advantage of his weakness and simplicity. The gift deeds executed by him in favour of defendants Nos. 1 to 3 were null and void and were infructuous against his interest. In the written statement filed on behalf of the defendants, it was pleaded that they were the collaterals of the plaintiff. Though it was admitted that the plaintiff was an old man, yet it was asserted that he was hale and hearty. He was said to be a very shrewed man; a professional litigant and a Court bird who was very much conversant with the Court and the tahsil procedures. The father of the defendants was also a collateral of the plaintiff and that the defendants and their father had been serving him for the last so many years. It was out of love and affection that the plaintiff had executed the gift deeds in their favour which were complete and irrevocable. On their basis, even the mutation had been sanctioned in their favour. It was further alleged by them that the gift deeds were executed voluntarily. The trial Court found that the execution and the validity of the gifts was proved and that the defendants in pursuance of the same were in actual cultivating possession of the suit land. According to the trial Court, no legitimate suspicion surrounded the execution or the validity of the gift deeds. In view of this finding, the plaintiffs suit was dismissed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and held that the gift deeds were got executed by fraud and misrepresentation played by Charan Singh upon the plaintiff. Consequently, the plaintiffs suit was decreed. Dissatisfied with the same, the defendants have filed the present second appeal in this Court.

(3.) The learned counsel for the appellants contended that no particulars of the alleged fraud played by Charan Singh, the father of the defendants, on the plaintiff have been given in the plaint, nor there was any cogent evidence on the record to prove the alleged fraud or misrepresentation, if any. According to the learned counsel, the alleged fraud is to be established beyond reasonable doubt. Mere creating the suspicion as such would not amount to fraud or mis-representation. In support of the contention, the learned counsel relied upon Krishnaswami v. Kamalamma, AIR 1941 PC 90 and Union of India v. M/s. Chaturbhai, 1976 Cur LJ (Civ) 166. It was further contended that the mutation was sanctioned in the present case in favour of the defendants on the basis of the gift deeds. The plaintiff was an active person having litigation in about 25 cases. Therefore, the question of any mis-representation or fraud having been played upon him by their father did not arise. The gift deeds in their favour were executed for the services rendered by their father Charan Singh to the plaintiff. Moreover, the present suit was filed on Feb. 19, 1978, i.e., about a year after the execution of the gift deeds. An argument was also raised that the plaintiff has to succeed on the strength of his own case and not on the weaknesses of the defendants' case. On the other hand, the learned counsel for the plaintiff-respondent submitted that the gift deeds executed by the plaintiff were not voluntary as contemplated under S.122 of the Transfer of Property Act, (hereinafter called the Act). Moreover, the lower appellate Court after discussing the entire evidence has given a firm finding in favour of the plaintiff and, thus, it being a finding of fact, could not be interfered with in second appeal.