KALA WATI Vs. VIDYA DEVI

JUDGEMENT

(1.) THIS appeal has been preferred by the plaintiff against the judgment and decree of the learned District Judge affirming the judgment and decree of the learned trial Court in suit instituted by appellant herein for declaration that the release deed Ex. DA, dated 6th December, 1988, purportedly executed by her, does not bind her as it is not of her own free will and volition, which suit was dismissed.

(2.) IT is undisputed before me that the appellant and the respondent are brother and sister being the daughter and son of Shri Gopal. Plaintiff -appellant pleaded that release deed Ex. DA was obtained from her by taking advantage of her illiteracy, misrepresentation and undue influence etc.

(3.) ON the issue as to whether the plaintiff had been duped into signing of the release deed Ex. DA, the learned trial Court holds that this deed is duly registered. The document has been duly witnessed/attested by PW -1 Shri Kamal Kishore Saini and PW -2 Shri Karam Chand, Ahlmad and Peon respectively in the office of Tehsildar -cum -Sub -Registrar, Nahan. The learned trial Court holds that, "but having become attesting witnesses to the execution of the release deed they, for unknown reasons, appear to have sided with the plaintiff who examined them in substantiation of her claim." This is indeed a very strange observation as the trial Court had to consider the evidence in its entirety without expressing its opinion at the initial stage of appreciation of evidence. The learned trial Court also holds, "there is no gainsaying the fact that she being 'pardanashin ' illiterate lady, the burden is on the defendant to prove that the release deed was executed by her by understanding the import thereof and that execution of the document was not only a physical act, but also a mental act. This burden, to my thinking, stands well discharged...." To reach this conclusion, he refers to the evidence of DW -1 Shri Ajay Kaushik, Advocate and DW -2 Shri Mohan Singh.