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2001 DIGILAW 700 (JHR)

MUKHRAJ DEVI v. MANOJ KUMAR SINGH

2001-09-26

GURUSHARAN SHARMA

body2001
Judgment : GURUSHARAN SHARMA, J. ( 1 ) KISMATI Devi was wife of Mathura Singh of village Barodih in Palamu district. She died leaving behind four daughters namely, Brijbas Devi, Mukhraj Devi, payari Devi and Jaibas Devi. Her husband along with three daughters filed Title Suit No. 64 of 1976 against fourth daughter, Brijbas Devi and her husband Rameshwar Prasad Singh for declaration that execution of deed of gift dated 2-9-1976 by Kismati Devi was not her conscious act and it was inoperative and ineffective document and did not confer any title upon defendant No. 1. Properties covered by said deed were detailed in Schedule Ato the plaint. ( 2 ) ACCORDING, to plaintiffs, defendant No. 2, husband of defendant No. 1 manouvered execution of gift deed fraudlently. Kismati Devi was seriously ill and was suffering from cancer. Her condition deteriorated and on 30/08/1976 she became unconscious and thereafter could never regain consciousness till her death on 4-9-1976. In the meantime, defendant No. 2 proposed to take her to Varanasi for treatment on the plea that if she did not survive, her last rites would be performed there. On that pretext she was brought to Garhwa to catch train for Varanasi, but instead of taking her to Varanasi, defendant No. 2, on 2-9-1976 got a deed of gift executed by her at Garhwa and thereafter brought her back to village Barodih and announced that he could not arrange sufficient money and so she could not be taken to Varanasi. Kismati Devi expired at village-Barodih. ( 3 ) PLAINTIFFS alleged that defendant No. 2 obtained L. T. I. of Kismati Devi on the deed and for that purpose she was brought on the Veranda of Registration Office, Garhwa, in a case of unconsciousness and mother of defendant No. 2 impersonated her before Registrar. The scribe managed the affairs in collusion with staff of the Registration Office. ( 4 ) IT was asserted that Kismati Devi loved all her four daughters very much and there was no reason or occasion as to why she would execute a deed of gift only in favour of one of her daughters, namely, defendant No. 1. Plaintiffs had neither any knowledge nor they had ever consented for execution of any deed of gift in favour of defendant No. 1 alone. Plaintiffs had neither any knowledge nor they had ever consented for execution of any deed of gift in favour of defendant No. 1 alone. ( 5 ) ACCORDING to defendants, Kismati Devi executed deed of gift in favour of defendant No. 1 in sound state of mind and in good faith. She was never seriously ill and was also not suffering from Cancer and was never unconscious before her death. Any proposal to take her to Varanasi for treatment and/or for performing her last rites there on her death was also denied. She willingly decided to give her properties to her youngest daughter, defendant No. 1 because she was not comparatively at par economically with her other sisters. To her proposal, her husband and all daughters as well as sons-in-law agreed. She herself went to the Registration Office at Garhwa and performed all the formalities required for registration. Defendants denied her death on 4-9-1976, rather, according to them, she died on 11-9-1976. ( 6 ) PLAINTIFF No. 1 and defendant No. 1 died during pendency of the suit and then names were expunged. Heirs of deceased defendant No. 1, who were not on record were substituted in her place. Defendants sold some of the suit lands and so those purchasers were also added as party-defendants in the suit. They filed separate written statement. ( 7 ) TRIAL Court dismissed the suit on 29-9-1976, holding that deed of gift, Ext. 1 executed by Kismati Devi in favour of defendant No. 1 was valid and genuine. ( 8 ) PLAINTIFFS examined altogether seven witnesses. P. W. 1 was husband of plaintiff No. 4. P. W. 2 was nephew of plaintiff No. 1. P. W. 3 was a co-villager and Gotia of plaintiff No. 1 and P. W. 4 was his ploughman. P. W. 5 was husband of plaintiff No. 3, who also examined herself as P. W. 6. ( 9 ) ON the other hand, defendants examined altogether ten witnesses. D. W. 1 was scribe of the deed of gift. D. W. 2 was related to Kismati Devi from her Nainar side. The identifier of LTI of Kismati Devi on the gift deed, namely, Shyamacharan Singh was examined as D. W. 6 and defendant No. 2 examined himself as D. W. 9. D. W. 1 was scribe of the deed of gift. D. W. 2 was related to Kismati Devi from her Nainar side. The identifier of LTI of Kismati Devi on the gift deed, namely, Shyamacharan Singh was examined as D. W. 6 and defendant No. 2 examined himself as D. W. 9. ( 10 ) ADMITTED position was that Mathura Singh and Kismati Devi had no male issue and they had only four daughters. The suit properties were Stridhan properties of Kismati Devi. Defendants claimed that Kismati Devi of her own accord decided to make gift of her properties to her youngest daughter, defendant No. 1 and went to Registration Office at Garhwa on 2-9-1976 for the said purpose. ( 11 ) IN normal course, if Kismati Devi had to go to Registration Office to execute a deed of gift with prior consultation and agreement with her husband, three daughters and sons-in-law, then she being an illiterate lady, her husband ought to have attested her LTI on the deed of gift and identified her. Absence of her husband, created a doubt. ( 12 ) SECONDLY, none of co-villagers or relatives, including her sons-in-law or daughters were attesting witnesses on the said gift deed rather three strangers acted as attesting witnesses. Two of them were local rayeeds (sic) and third one was also a resident of different village and very surprisingly none of them came to depose on behalf of the defendants in order to prove execution of Ext. 1. ( 13 ) THE scribe D. W. 1 and identifier, D. W. 6 cannot be said to be attesting witnesses and, in my opinion, defendants miserably failed to prove execution of the gift deed, Ext. 1 by Kismati Devi. It is important to mention here that D. W. 6 admitted in his evidence that he purchased part of the suit land from defendant No. 2 and D. W. 9 also admitted this fact. ( 14 ) IN the aforesaid circumstance, I find that plaintiffs failed to prove that Kismati Devi had executed the deed, Ext. 1 while she was fully conscious and aware of the contents thereof. None of its attesting witnesses came to prove that actually Ext. 1 was executed by Kismati Devi herself. ( 15 ) I have, therefore, no option but to set aside the impugned judgment and decree passed by the trial Court. 1 while she was fully conscious and aware of the contents thereof. None of its attesting witnesses came to prove that actually Ext. 1 was executed by Kismati Devi herself. ( 15 ) I have, therefore, no option but to set aside the impugned judgment and decree passed by the trial Court. The suit is, accordingly, decreed holding that deed of gift dated 2-9-1976 was invalid, ineffective and inoperative document. It did not confer any title upon defendant No. 1 in respect of properties, detailed in Schedule A to the plaint. ( 16 ) IN the result, the appeal is allowed, but without costs. Lower Court records may be sent down. Appeal allowed. --- *** --- .