RAMESH KUMAR Vs. KHEM SINGH

JUDGEMENT

(1.) THIS regular second appeal has been preferred by the appellants/defendants against judgment and decree dated 7.6.2002 passed in Civil Appeal No. 35 -S/13 of 2001 by learned Additional District Judge, Solan, District Solan, H.P. whereby he partly allowed and partly dismissed the appeal and modified the judgment and decree dated 18.6.2001 passed by learned Senior Sub Judge, Solan, District Solan, H.P. in Civil Suit No. 67/1 of 1997 to this extent.

(2.) THE facts, in brief, are that Smt. Surmi, plaintiff filed the suit for declaration to the effect that the document described as Relinquishment deed and registered as document No. 705 with the Sub Registrar, Solan on dated 23.12.1993 qua the suit land is illegal, void, ab initio and of no legal consequences and also suit for permanent injunction restraining the defendant Ratti Ram from interfering into the share of plaintiff qua the suit land. It was pleaded that plaintiff is co -owner in possession of the suit land and plaintiff is about 60 years of age who is a childless widow was being maintained by Khem Singh son of Ram Rattan for more than 9 years and the land belonging to her share is also being cultivated by said Khem Singh continuously. It was pleaded that the defendant is a son of the younger brother of late husband of plaintiff who never cared for the maintenance of the plaintiff after the death of her husband. It was pleaded that as long as the plaintiff could manage her affairs she was getting it done through various persons including Khem Singh but when her health failed, she requested Khem Singh to manage the share of her property and also maintain her and in lieu of that she executed a registered Will in favour of Khem Singh which was registered with the Sub Registrar, Solan. It was pleaded that the Will was registered as document No. 82 on dated 25.6.1993. It was pleaded that said Khem Singh was maintaining the plaintiff well and was also cultivating her share of land but on 18.12.1993 when Khem Singh had gone to the house of his in -laws in Village Kanda the defendant came to the house of the plaintiff and told her that her brother Mani Ram had fallen ill and asked the plaintiff to accompany him to Village Dharon and believing the defendant, the plaintiff left her house and accompanied him to village Dharon and thereafter the defendant persuaded the plaintiff to accompany him to Village Dhamkari and kept her there in the house of his sister. It was further pleaded that defendant by fraud, misrepresentation and undue influence got a document termed as relinquishment deed executed and got her thumb impression on the said document telling her that the defendant is getting his share separated from her and the said document is required for the said purpose and the plaintiff later came to know from the defendant that her entire property i.e. suit land had been got relinquished in his favour and she was no longer owner of the said land. It was pleaded that after getting the said document falsely prepared and fraudulently executed the defendant kept the plaintiff in the house of his sister at Damkari upto 31.1.1994 and on 1.2.1994 she was thrown out of the house and she had to come to the house of Khem Singh in Village Changer who was maintaining her as before. It was pleaded that the defendant played a fraud in getting the thumb impression on the above referred document termed as relinquishment deed and had gobbled up the entire property of the plaintiff and had thrown her at the mercy of Khem Singh. It was pleaded that the said document is not only a result of fraud, misrepresentation but is also a unconscionable document as the plaintiff, who is a old childless widow had been deprived of her property by a unscrupulous person who had never maintained her or rendered any service to her except for about six weeks in which he got the above referred document prepared under the circumstances referred to above and the plaintiff came to know about the real nature of the document on 10.2.94 when she asked Khem Singh to apply for the certified copy of the document which he did on behalf of the plaintiff and which was received on 15.2.1994. It was pleaded that the cause of action arose first on 23.12.1994 when a fraudulent, illegal and void document was got prepared and registered and subsequently on 15.2.1994 when the copy of the same was got through Khem Singh and continued on each day thereafter and prayed for decree of the suit.

(3.) THE replication was filed by the plaintiff and denied all the allegations of the defendant made in the written statement and those of the plaint were reasserted.