BENSU DEVI Vs. KISHAN CHAND

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 29.9.2010 rendered by the learned District Judge, Chamba in Civil Appeal No. 4 of 2010. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as 'plaintiff for convenience sake) instituted a suit against the appellant-defendants (hereinafter referred to as 'defendants' for convenience sake). According to plaintiff, he was maternal uncle of defendant No. 1 Smt. Bensu and Smt. Nimmu is his real sister. According to him, defendant No. 2 was putting up with the plaintiff and defendant No. 1 was looking after them. She got married and started putting up with her husband in her matrimonial village. He was made to believe that defendant No. 1 will be rendering services and will perform all the last rites after his death by defendant No. 1. In these circumstances, he was taken to Tehsil Office for getting a 'will' executed where defendant No. 2 Nimmu, who is also his real sister, also joined him and stated that there will be a joint 'will' in favour of defendant No. 1, thereby a joint will was agreed to be executed. However, defendant No. 1 Bensu in connivance with the revenue staff, Sub Registrar and Document Writer, prepared a gift deed and the same was registered. It was never read over to the plaintiff or defendant No. 2. They came to know about this fact when defendant No. 1 threatened to take forcible possession of the suit land. The plaintiff has prayed that declaration be granted that no gift deed was ever executed by the plaintiff and defendant No. 2 in favour of defendant No. 1 and consequent mutation Nos. 504 and 600 dated 27.11.2001 were illegal and the gift deed was also null and void.

(2.) The suit was contested by defendant No. 1. According to the averments contained in the written statement, no 'will' was executed by the plaintiff or defendant No. 2 in her favour. Plaintiff and defendant No. 2 were happy with her and on account of services having been rendered by her, gift deed was executed and they have also parted with the possession, which was with her. Mutations were attested in accordance with law.

(3.) Defendant No. 2 has filed separate written statement and has admitted the claim and averments made by the plaintiff by submitting that she or the plaintiff never executed a gift deed in favour of defendant No. 1, but on account of the services rendered by her and she having agreed to render services throughout their lives and perform their last rites, she has executed a 'will' in her favour. It is further stated that defendant No. 1 in connivance with the revenue staff has got gift deed executed instead of a 'will' thereby the suit of the plaintiff be decreed. The replication was filed by the plaintiff Issues were framed by the trial Court on 8.1.2008. The trial Court decreed the suit vide judgment dated 4.12.2009 by setting aside gift deed and the mutation Nos. 504 and 600 attested on the basis of gift deed were also set aside and defendant No. 1 was restrained from alienating the suit land. Defendant No. 1 preferred an appeal before the learned District Judge. He dismissed the same on 29.9.2010. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: