NIKO DEVI Vs. KIRPA

JUDGEMENT

(1.) This regular second appeal arises out of the judgment and decree passed by the learned Additional District Judge Kangra at Dharamsala, dt. Aug, 1, 1978, whereby the appeal of Kirpa (hereinafter referred to as 'the defendant') against Smt. Nikko (hereinafter referred to as 'the plaintiff') was allowed, the judgment and decree dt. Aug. 22, 1977 passed by the trial court (Subordinate Judge Ist Class Palampur) in favour of the plaintiff were set aside and consequently the suit of the plaintiff was dismissed leaving the parties to bear their own costs throughout.

(2.) The facts are that the plaintiff instituted a suit in the court of the Subordinate Judge at Palampur for possession of certain land measuring 4 kanals 13 marlas, one house and one GHARAT, more particularly described in the body of the plaint. Her case was that this property at one time was exclusively in the ownership and possession of her father Moni. Said Moni died when the plaintiff was a child of two years and on his death this property devolved upon her mother Smt. Kalan exclusively. Said Kalan also died when the plaintiff was hardly a child of ten years and thereafter the defendant started bringing her up and also took the entire suit property in his possession including the moveable property, namely, the household articles, ornaments of gold and silver and 80 heads of sheep and goats and started appropriating them to himself in lieu of her maintenance. She asserted that as a matter of fact the defendant is the son of her father's elder brother Murli as her father and said Murli were the real sons of one Khana alias Gainda.

(3.) The plaintiff further averred that somewhere in 1967 the defendant got the plaintiff married but did not send her to the matrimonial home for a period of 2 years on the plea that throughout this period there was no auspicious occasion for sending muklawa that is, the ceremony when the bride for the first time goes to the matrimonial home after the marriage. It has further been the case of the plaintiff that before the defendant sent her muklawa he pressed upon the plaintiff that she should execute a general power of attorney in his favour with respect to her property as in the contrary event this property was likely to be dissipated by her husband or his family members when she goes in muklawa and starts living with them and in that case she was likely to face hardship in case she was not treated well in the matrimonial home and was required to fall back upon her own property. On this false pretext, according to the plaintiff, she was taken to Palampur by the defendant while she was living with him and got the document executed by her and later on when she started living in the matrimonial home she came to know from her husband that the said document was in fact a gift deed in respect of her entire property which the defendant had got executed by her in his favour. She thus asserted that as this so-called gift was the result of fraud, coercion and undue influence on the part of the defendant, the same was liable to be set aside, and she prayed that a decree be passed in her favour for possession of this property after setting aside the gift deed. She also claimed Rs. 500/- by way of damages in respect of the moveable property appropriated by the defendant which belonged to her.