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2009 DIGILAW 153 (CAL)

Modanantak Pratap Singh v. Manwendra Pratap Singh

2009-02-25

ASHIM KUMAR BANERJEE, PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1) This appeal is at the instance of the plaintiff and is directed against the judgment and decree dated 27.04.1989 passed by the learned Assistant District Judge, Additional Court, Hooghly in Title Suit No.60 of 1988 whereby the learned Trial Judge dismissed the suit. (2) The plaintiff/appellant filed the suit for declaration and setting aside the two deeds of gift as described in the schedule C and D of the plaint holding that the same were false, fraudulent, collusive, invalid and done under coercion and undue influence and also praying for restraining the defendant no.1 from interfering with the plaintiffs possession of the properties described in schedule A and B of the plaint and for other consequential reliefs. According to the plaint case one Ram Pal Singh, since deceased, was the owner of the suit properties. He had many properties at Chandannagar in West Bengal and Protapgarh in Uttar Pradesh. He belonged to Mitakshara School of Hindu Law. He died intestate in 1952 leaving behind the plaintiff as widow, only one son, Uday Raj Singh and two daughters namely Raghupati Debi and Vidyabati Debi. The daughters were married. The defendant no.1 is the wife of Uday Raj Singh, son of Ram Pal Singh. The son of the plaintiff looked after her and he held a Power of Attorney but subsequently he was involved in debts and then in order to save the schedule A and B properties of the plaint, one Title Suit No.54 of 1967 was filed by the plaintiff for partition of the suit properties along with other properties. The plaintiff became the absolute owner of the suit properties mentioned in schedule A and B of the plaint by the final decree of the said suit for partition. The plaintiff, her son and defendant no.1 went to stay for some days at their native village at Narharpur, Protapgarh, Uttar Pradesh and at that place her son became ill and then the son went to her sisters house at Protap Bahadur Park about 8 miles away from their native village, Narharpur and stayed there for sometime. During such temporary absence of the plaintiffs son, the defendant no.1 in collusion and conspiracy with the defendant nos.2 and 3 hatched up a plan to grab the property of the plaintiff. During such temporary absence of the plaintiffs son, the defendant no.1 in collusion and conspiracy with the defendant nos.2 and 3 hatched up a plan to grab the property of the plaintiff. The defendant no.1 proposed the plaintiff to return to Chandannagar for her medical treatment by their house physician, Dr. A. K. Sain, at Chinsurah. They left Protapgarh at dead hours of night by a jeep for Chandannagar as per arrangement of the defendant no.1. The driver and another unknown person were in the said jeep. On the next evening they reached Chandannagar. Because of jerks and jolting of the vehicle and old age, the plaintiff became ill and she could not move for two to three days. Dr. A. K. Sain was not called for her examination at all. On the other hand, in one afternoon when the plaintiff was in her bed, the defendant no.1 and an unknown person wanted to take few thumb impressions of the plaintiff on some papers. Beside the defendant no.1, nobody known to the plaintiff was present. On being asked the defendant no.1 told her that a Power of Attorney for looking after the properties was being executed. The plaintiff disagreed to put her left thumb impression on such papers. But she was threatened with dire consequences. Ultimately the plaintiff was compelled to put her L.T.Is. on some papers. The contents of those papers were not read over and explained to her. She had no independent advice for taking her L.T.Is. on those papers. Then defendant no.1 and other persons left the room. Thereafter the plaintiff informed her son to come to Chandannagar. After a few days, she told him everything when he came. The son of the plaintiff made enquiries and came to know that the defendant no.1 procured two deeds of gift in her favour in respect of the suit properties. The deeds of gift laid down that one Harikesh Bahadur Singh of Aurangabad read over and explained the deed to her but he was not known to her at all. The deeds of gift were not properly executed at all and so they were void. The defendant no.1 had also executed and registered a deed of lease in favour of the defendant no.2 for five years in respect of the properties mentioned in schedule B without any premium. The deeds of gift were not properly executed at all and so they were void. The defendant no.1 had also executed and registered a deed of lease in favour of the defendant no.2 for five years in respect of the properties mentioned in schedule B without any premium. The previous lease under the plaintiff had already expired in respect of those properties and the defendant no.2 was asked to vacate the properties. (3) The defendant no.1 contested the suit stating, inter alia, that her husband, i.e., son of the plaintiff was not a person of good moral character. The plaintiff was afraid of her son. So in order to protect the suit properties from the clutches of her son she had gifted the same in favour of her sons wife. The deeds of gift were properly executed. The defendant no.1 took possession of the same. So the suit should be dismissed. (4) Considering the evidence on record, the learned Trial Judge dismissed the suit on contest. Being aggrieved by the said judgment and decree, this appeal was preferred by the plaintiff. (5) Upon hearing the submissions of the learned Advocates of both the sides and on perusal of the materials on record, we find that admittedly Ram Pal Singh was the original owner of the suit properties as described in the schedule of the plaint. Admittedly, he died in 1952 leaving his wife, Isharaji Debi, one son, Uday Raj Singh and two daughters namely Raghupati Debi and Vidyabati Debi. Admittedly, Uday Raj Singh and the two daughters were married in or around 1941. Admittedly, Uday Raj Singh was issueless and he died within or about three months after the date of filing the suit. Admittedly, the married daughters had been residing in their in-laws house and they are now dead. Admittedly, Isharaji Debi died in February, 1986. After death of Isharaji Debi, Bidyabati Debi was substituted for the plaintiff. Raghubati Debi was mentioned as defendant no.4. But she did not contest the suit by filing any written statement of defence. Admittedly, one partition suit was held between Isharaji Debi, her son Uday Raj and others and as per final decree for partition, Isharaji Debi became the absolute owner of the suit properties. Admittedly, the original plaintiff and her son sometimes resided at their house at Chandannagar, Hooghly and, sometimes at Narharpur, under Protapgarh, Uttar Pradesh. Admittedly, one partition suit was held between Isharaji Debi, her son Uday Raj and others and as per final decree for partition, Isharaji Debi became the absolute owner of the suit properties. Admittedly, the original plaintiff and her son sometimes resided at their house at Chandannagar, Hooghly and, sometimes at Narharpur, under Protapgarh, Uttar Pradesh. (6) Admittedly, Isharaji Debi put her L.T.Is. on the two deeds of gift marked exhibit G and G-1 purported to have been made in favour of the defendant no.1/Ashawati Debi, wife of Uday Raj Singh. Admittedly, Isharaji Debi was old and illiterate at the time of alleged execution of the two deeds. Now the main issue is whether the plaintiff executed the two impugned deeds of gift G and G-1 on her own volition or under coercion, undue influence, compulsion, etc. (7) The learned Senior Advocate, appearing for the appellants, submitted that the impugned deeds had not been executed by the original plaintiff out of own volition and that there was no independent advice to her. Even there was no mental act on the part of the donor at the time of execution of the two deeds of gift. He contended before us that before execution of the two deeds of gift they went to Protapgarh and Uday Raj Singh became ill. So he was taken to the house of his sister, Vidyapati Debi. At that time, during his absence, the donor was taken by the defendant no.1 and her men to Chandannagar. She was forced to sign on the deeds of gift under coercion and undue influence and even on physical assault. He also contended that Isharaji Debi was ill after a long travel from Protapgarh to Chandannagar which was about 600 miles away. Isharaji Debi was not examined by their physician, Dr. A. K. Sain or any other doctor. On the other hand, she was compelled to put her L.T.Is. on some papers purported to have been made as deeds of gift. So, the donee was required to show that execution of the deeds had been done properly. (8) On the other hand, the learned Advocate for the defendant no.1/respondent no.1, contended that the deeds of gift had been properly executed. One Chunilal Ghosh, an Advocate, was the lawyer of Isharaji Debi. So, the donee was required to show that execution of the deeds had been done properly. (8) On the other hand, the learned Advocate for the defendant no.1/respondent no.1, contended that the deeds of gift had been properly executed. One Chunilal Ghosh, an Advocate, was the lawyer of Isharaji Debi. He was called in the house of Isharaji Debi on the day previous to the date of execution of the deeds of gift dated 15.05.1982. He was told about the purpose of preparation of the deeds of gift and he was handed over the particulars of the properties, that is, copy of partition decree and other papers. One Moloy Kr. Ghosh, a law clerk cum deed writer, prepared the draft. It was read over and explained to Isharaji Debi. When she consented, the deeds of gift had been prepared on the stamp paper and then execution and registration of the two deeds had been done at the premises of Isharaji Debi as she was a pardanasin lady. The two deeds were properly read over and explained by one Harikesh Bahadur Singh, now dead. The donee accepted the gift. Thereafter another deed of lease was executed in favour of the defendant no.2 by the defendant no.1 in respect of schedule property. So the deeds of gift had been properly made. The learned Trial Judge rightly dismissed the suit. (9) On hearing rival contentions of the parties on the matter in issue before us and on careful consideration of the evidence of the donor on commission, we find that the evidence of the donor was trustworthy for the following reasons: (10) The donor herself adduced evidence to the effect that she did not put her L.T.Is. on realising the nature of the papers on which she had put her L.T.Is. She stated that she was taken to Chandannagar by a jeep for her treatment by Ashawati Debi but no treatment was done. In this regard, Ashawati Debi was not in a position to show by any convincing evidence that Isharaji Debi was examined by their house physician, Dr. A. K. Sain or any other doctor. Ashawati Debi arranged for the jeep for journey, though Isharaji Debi was guite old at that time and Protapgarh was 600 miles away from Chandannagar. The donee did not arrange for travel by train. A. K. Sain or any other doctor. Ashawati Debi arranged for the jeep for journey, though Isharaji Debi was guite old at that time and Protapgarh was 600 miles away from Chandannagar. The donee did not arrange for travel by train. That could happen when there was an urgency on the part of the donee to have the deeds anyhow. Ashawati Debi contended that Isharaji Debi asked Ramesh Chandra to prepare the deed but that was totally denied by the donor. She stated unequivocally that she was beaten by Ashawati Debi with a stick and that she was forced to put her L.T.Is. by Ashawati Debi. Even nobody read over the contents of the deeds to her. She categorically stated that her son was a smoker but he did not drink. The fact that she was forced to put her L.T.Is. on some papers appears to us to be convincing because of the fact that as per her evidence immediately after putting her L.T.Is. on some papers, she called her son who was then convalescing at his sisters house at Protap Bahadur Park. The son came and searched for the documents which had been prepared and on realizing the facts Isharaji Debi filed the suit within about three months from the date of execution of the deeds of gift. Specific question was put to Isharaji Debi as to whether any other person save Ashawati Debi was present at the time of taking her L.T.I. forcibly. She stated that she did not know who else was present but someone was standing and she could not tell his name. That person who was standing might be the local Sub-Registrar or any person on his behalf for the purpose of execution and registration of the deeds of gift. She had explained clearly why she filed the suit for partition to protect the properties from the hands of her son as her son was laundering his paternal properties. From the evidence on record, it transpired that her son was indebted for about two/three lac and so such step taken by Isharaji Debi could well be understood. Isharaji Debi denied the suggestion that she wanted to make gifts of the entire properties to Ashawati Debi by executing the deeds of gift. Even she denied the suggestion that previously she executed Wills in favour of Ashawati Debi. Isharaji Debi denied the suggestion that she wanted to make gifts of the entire properties to Ashawati Debi by executing the deeds of gift. Even she denied the suggestion that previously she executed Wills in favour of Ashawati Debi. In this regard, we do not find from materials on record that Ashawati Debi was able to produce any original Will. According to her, Isharaji Debi executed a Will previously in her favour and for the second time, she executed a registered Will in favour of Ashawati Debi. The first Will was not produced. The original registered Will purported to have been executed by Isharaji Debi in favour of Ashawati was not also produced. Only one certified copy of the same was produced and marked x for identification. It is not clear by any convincing evidence why Ashawati Debi failed to bring the subsequent registered Will. The contention of Ashawati Debi was that a false suit had been filed against her because she did not transfer the properties obtained by her by the deed of Will in favour of her husband, Uday Raj Singh. That contention of the donee, we hold, could not be accepted because unless and until Isharaji Debi expired Ashawati Debi could not acquire the property by the Will executed by Isharaji Debi. So the contention that for non-transfer of property by Ashawati Debi in favour of Uday Raj Singh a false suit had been filed, cannot be accepted. Isharaji Debi denied the suggestion that the Sub-Registrar asked her about execution of the two deeds of gift. She clearly stated that she did not give any false statement. On careful scrutiny of her evidence, we do not find anything to shake the credence of her statement save on some minor points. Therefore, we hold that her evidence is trustworthy and it should be accepted. (11) P.W. 2, Bidyabati Debi, was the substituted plaintiff after death of Isharaji Debi. She was examined as P.W. 2. She stated that Uday Raj Singh went to her house from Narharpur. At that time, the defendant no.1/respondent no.1 did not accompany. Nor did her mother accompany him in 1982. Uday Raj Singh stayed at her house for about 15/20 days and at that time the impugned deeds were executed. She was cross-examined in details and nothing could be elicited so as to shake her evidence. At that time, the defendant no.1/respondent no.1 did not accompany. Nor did her mother accompany him in 1982. Uday Raj Singh stayed at her house for about 15/20 days and at that time the impugned deeds were executed. She was cross-examined in details and nothing could be elicited so as to shake her evidence. She clearly stated that there was good relation between the plaintiff and Uday Raj Singh. But there was not so good relation between Ashawati Debi and Uday Raj Singh as was expected in the case of a husband and his wife. Her evidence inspires confidence and from her evidence it is clear that while Uday Raj Singh stayed at her house, at that time the donor and the donee went to Chandannagar from Narharpur by a jeep. (12) P.W. 3, J. Singh, appeared to be the man who worked in the house of Uday Raj Singh at Narharpur. He supported the plaint case that the donor and the donee came to Chandannagar from Narharpur for medical treatment by a jeep and at that time Uday Raj Singh stayed at Protapgarh Bahadur Park for treatment i.e. in the house of Vidyapati Debi. So from his evidence it is clear that Uday Raj Singh did not accompany the donor and donee for the journey from Narharpur to Chandannagar and that the journey was intended for medical treatment of Isharaji Debi. Though he appears to be an interested witness, yet his evidence appears to be convincing and is in conformity with the evidence of the P.W. Nos.1 and 2. Therefore, we hold that there is nothing to disbelieve him on the matter he had deposed. (13) The D.W. 1 is Ashawati Debi, donee of the two deeds. She herself admitted that there was no good relation with her husband. She contended that the impugned deeds of gift had been executed at the instance of the donor and she arranged everything including engagement of a lawyer, purchase of stamp papers, etc. But on scrutiny of her evidence, we are of the view that her evidence is doubtful. According to her statement in December, 1981 Isharaji Debi executed a registered deed of Will in her favour in respect of the suit properties. She also contended that previously Isharaji Debi executed another Will in her favour in respect of the suit properties. But on scrutiny of her evidence, we are of the view that her evidence is doubtful. According to her statement in December, 1981 Isharaji Debi executed a registered deed of Will in her favour in respect of the suit properties. She also contended that previously Isharaji Debi executed another Will in her favour in respect of the suit properties. Dispute with Uday Raj Sngh arose when Uday Raj Singh asked her to transfer the properties obtained by Will in his favour and she did not agree. That is why, Uday Raj Singh assaulted her. That contention of the donee, we hold, could not be believed at all. When a Will was executed, title did not pass automatically at that very moment. Title would pass upon death of the executant of the Will. The legatee had to obtain a probate of the Will. Then and then the legatee might be able to transfer the property in favour of any person of his/her choice. Moreover, if the registered deed of Will was executed as per contention of Ashawati Debi in December, 1981, that is, at the fag end of the life of Isharaji Debi, there was no need/occasion to execute deeds of gift again over the self-same properties within six months in favour of the same person. In fact, the registered deed of Will was not produced before the Trial Court. One certified copy of the purported Will was produced and that was marked x for identification. Isharaji Debi denied execution of such Wills in favour of Ashawati Debi. The statement of a witness who had taken an unbelievable defence could not be believed. (14) As regards execution of the impugned deeds, the donee stated that during stay at Narharpur, the donor asked her to take her to Chandannagar for gift. That statement of the donee, we hold, could not be believed because at that time the son of the donor was residing at her sisters house at Protap Bahadur Park which was just eight miles away from Narharpur. Another sister of Uday Raj Singh namely, Raghupati Debi was also residing in Uttar Pradesh. That statement of the donee, we hold, could not be believed because at that time the son of the donor was residing at her sisters house at Protap Bahadur Park which was just eight miles away from Narharpur. Another sister of Uday Raj Singh namely, Raghupati Debi was also residing in Uttar Pradesh. When Isharaji Debi asked Ashawati Debi to take her to Chandanagar for execution of the so-called deeds of gift, we find from the very statement of Ashawati Debi that neither Uday Raj Singh nor his sisters or any member from the family of Bidyabati Debi and Raghupati Debi was present. So it could well be presumed that at the time of expressing such opinion, no such close relations who were to get the properties of Isharaji Debi after her death, were present. So from this fact alone it could well be decided that there was no independent advice to the donor for execution of the deeds of gift. (15) Admittedly, Uday Raj Singh normally lived at the premises at Chandannagar. But this property was also given to Ashawati Debi by the deeds of gift without any consultation with him. There is no evidence that after arrival at Chandannagar Isharaji Debi was examined by Dr. A. K. Sain or any other physician. On the other hand, we find that arrangements were made for execution of the deeds of gift and another deed of lease. As per evidence of Ashawati Debi, Isharaji Debi asked one Advocate namely Chunilal Ghosh to prepare the deeds of gift and she gave particulars. Chunilal Ghosh prepared the deeds but the impugned deeds exhibit G and G-1 do not lay down anywhere the name of the Advocate Chunilal Ghosh. As per her evidence supported by D. W. Nos.2 and 3, Chunilal Ghosh (since deceased), Advocate, the donor and the donee were present at the time of holding talks for preparation of the deeds of gift. This fact clearly shows that Isharaji Debi was not given any independent advice by any person at the time of preparation of the deeds. The witnesses examined by Ashawati Debi, we find, are all interested. Though Raghupati Debi was the sister of Uday Raj Singh, we find that she always stayed with Ashawati Debi while at Chandannagar. Raghupati Debi stated that her mother told her that she gifted property to Ashawati Debi. The witnesses examined by Ashawati Debi, we find, are all interested. Though Raghupati Debi was the sister of Uday Raj Singh, we find that she always stayed with Ashawati Debi while at Chandannagar. Raghupati Debi stated that her mother told her that she gifted property to Ashawati Debi. Her statement to this effect, we hold, could not be believed at all because though Isharaji Debi was cross-examined in details there was no whisper in her statement that she told such fact to Raghupati Debi. Therefore, we hold that her evidence is not believable. (16) D.W. 4, Kalu Yadav, is another witness residing at Nima, Dist.- Protapgarh. He did not tell anything about attestation. He stated simply that there was no good relation between Ashawati Debi and her husband. (17) D.W.5, Moloy Kumar Ghosh, was a law clerk cum deed writer. He was an attesting witness to the deed. He stated that according to instruction of the lawyer, Chunilal Ghosh, he prepared the draft copy of the deeds of gift. Thereafter they went to the house of Isharaji Debi and Chunilal Ghosh read over and explained the same to her. She paid money to purchase stamp paper, etc. On the next date, the deeds of gift were prepared and they again went to the house of Isharaji Debi whereat the deeds of gift had been executed and registered on commission. Chunilal Ghosh is dead and as observed earlier there was no whisper in the deed that Chunilal Ghosh had any role in the preparation of the deeds. As per contents of the deeds, one Harikesh Bahadur Singh identified the donor and he was also an attesting witness to the deeds. Harikesh Bahadur Singh is now dead as per evidence on record. As per evidence of the donee, what was surprising is that though the deeds were prepared at Chandannagar and the donee claimed that Harikesh Bahadur Singh resided at Lakhraj Bhavan, that is, at the suit properties and that he ran a transport business, there was no iota of evidence on this regard. On the other hand, Harikesh Bahadur Singh had put his signature as an attesting witness describing his address at Narharpur, Protapgarh. This casts a doubt why Harikesh Bahadur Singh put his address of Protapgarh if he actually stayed at the house in suit. On the other hand, Harikesh Bahadur Singh had put his signature as an attesting witness describing his address at Narharpur, Protapgarh. This casts a doubt why Harikesh Bahadur Singh put his address of Protapgarh if he actually stayed at the house in suit. The donee could not produce any paper that he was a tenant under the parties to the deeds of gift. No paper was produced by the donee that Harikesh had any transport business at Chandannagar. So there is every doubt if Harikesh Bahadur Singh stayed ever at Chandannagar. Rather the deeds of gift revealed that Harikesh Bahadur Singh was a residence of Narharpur, Protapgarh. The donor stated in her evidence that beside the driver of the jeep another unknown person was in the jeep. So that unknown person might be Harikesh and he was a man of the donee from Narharpur. (18) What was more surprising was that according to the evidence of the attesting witness, D.W.5 when Chunilal Ghosh (an Advocate) was taking notes at the time of conversation with Isharaji Debi, Ashawati Debi was present there signifying the fact that except Ashawati Debi no other person was present at the time of preparation of the deeds of gift. From such fact it could be ascertained that no independent advice was tendered to the donor at the time of execution of the deeds of gift. (19) D.W.6, Ramesh, we find, is a person working under the donee and there is no convincing evidence that he worked under the donor. Suggestion was given to the donor to that effect and the donor denied. So such admission of the donee goes against her implying that Ramesh was an employee of the donee. He was not a witness to the deeds of gift. He stated that there was no good relation between Ashawati Debi and Uday Raj Singh but there was good relation between the donor and the donee. So evidence of such person, we hold, should not be believed. (20) As the donor was illiterate and old and as the parties to the deeds of gift were in a fiduciary relation one being able to dominate the Will of the other, the donee was bound to prove that the donor had competent and independent advice to execute the deeds. (20) As the donor was illiterate and old and as the parties to the deeds of gift were in a fiduciary relation one being able to dominate the Will of the other, the donee was bound to prove that the donor had competent and independent advice to execute the deeds. The donee was also bound to prove that the donor had the mental act to execute the deeds of gift independently. But from the admission of the donee herself as stated above, it was clear that except the donee no other person was present at the time of preparation of the deeds of gift or subsequent execution and registration of the transaction. (21) Our observations get support from the decision reported in (2004) 9 SCC 468. In the instant suit though normally the parties to the deed of gift resided at Chandannagar specially Uday Raj Singh stayed at Chandannagar, at the time of execution and registration of the transaction, we find that there was none to give independent advice to the donor except some men of the donee who hailed from Narharpur, Protapgarh. (22) The donor stated in her deposition that she was forced to put her L.T.Is. on the deed under coercion and under influence. (23) The evidence on record revealed that Moloy Kr. Ghosh, D.W.5, took steps for execution and registration of the transaction and he filed an application before the concerned Sub-Registrar for registration of one deed of gift at the house of the donor at Chandannagar vide Exhibit 3a. He deposited requisite money for execution and registration of the transaction on commission. But in fact we find two deeds of gift and another deed of lease by Ashawati Debi in favour of the defendant no.2 who was a previous tenant, had been executed on commission and the attesting witnesses were the same in respect of such deeds. This fact also proves that the real transactions were not also brought to the notice of Isharaji Debi. (24) Upon careful scrutiny of the evidence on record, we are of the view that the following facts and circumstances have emerged from the record: i) The donor, the donee and one Advocate namely Chunilal Ghosh were present at the time of preparation of the draft deeds of gift. (24) Upon careful scrutiny of the evidence on record, we are of the view that the following facts and circumstances have emerged from the record: i) The donor, the donee and one Advocate namely Chunilal Ghosh were present at the time of preparation of the draft deeds of gift. ii) After execution and registration the donor intimated her son, who came to Chandannagar and took steps for search etc., about the deeds. That fact signified that the donor suspected about taking her L.T.Is. on some papers whether on blank or written for conversion of certain documents prejudicial to her. iii) Within three months of the execution of the deed, the donor filed the suit for declaration, cancellation of the deeds etc. signifying that she took prompt action for cancellation on realising that certain transactions had been caused to be done by the donee and others on which the donor had no support. iv) The donor deposed on commission denying execution of the deeds of gift. Her evidence was convincing and trustworthy. She stated that she had put her L.T.Is. on some papers under coercion, undue influence, etc. v) From Narharpur to Chandannagar the donor was taken by the donee and some of her men at night by a jeep to travel 600 kilometers to make something hurriedly. vi) Though the donor was told that she was being taken to Chandannagar for her medical treatment but in fact, no medical treatment was ever done at all at Chandannagar. vii) The donee took the opportunity of illness of her husband and absence for a very short period of about 15/20 days from their house at Narharpur. He was not told about the fact that of taking his mother to Chandannagar. Even those two sisters who also resided in Uttar Pradesh were not informed at the time of taking the donor to Chandannagar from Narharpur and preparation of the deeds of gift at Chandannagar. viii) At the time of taking the donor from Narharpur to Chandannagar Uday Raj Singh was at his sisters house at Protap Bahadur Park just eight miles away and he was convalescing at that period but neither the sister nor Uday Raj Singh was consulted for taking the donor to Chandannagar. ix) The evidence of the donee relating to transactions is not trustworthy. x) Immediately, on getting information, Uday Raj Singh came to Chandannagar and enquired the fact. ix) The evidence of the donee relating to transactions is not trustworthy. x) Immediately, on getting information, Uday Raj Singh came to Chandannagar and enquired the fact. Then on being realised about the execution of the transactions the donor took necessary steps for cancellation of the two deeds of gift. xi) If the deeds are perused, it would appear that the deeds laid down several properties valued several lac, but the two deeds had been prepared on under-valued stamp paper of Rs.45,000/-each only. That fact proved that the donee was in a hurry to have the deeds without delay for any moment further. xii) D.W.5, M. K. Ghosh applied for execution and registration of one deed of gift (vide exhibit 3a) but in fact on that day two deeds of gift were purported to have been executed by the donor and another deed of lease was also prepared and executed by Ashawati Debi and the attesting witnesses of the three deeds were the same persons. xiii) The fact that the relation between the donee and her husband was not good, was proved by overwhelming evidence on behalf of both the sides. The donor proved that she had no good relation with the donee and that fact was supported by the reliable evidence of P.W.2 and 3 as discussed earlier. The relation between Isharaji Debi and Uday Raj Singh was very good and cordial. Admittedly, Uday resided at Chandanagar. That property too, was gifted by the so-called deeds of gift without consent of Uday Raj Singh. So it is difficult to conclude that in spite of such strained relation the donor would give several properties to the donee without any discussion with Uday Raj Singh. xiv) The donee alleged that Chunilal Ghosh did everything but the deeds did not indicate that he had prepared, read over and explained the deeds to the donor. xv) As per contention of the donee, in December, 1981 the donor executed a registered deed of Will in respect of the suit properties in her favour. At that time, the donor was at the fag end of her life and in fact she died in February, 1986. The donee also claimed that previously the donor executed another Will in her favour in respect of the suit properties. At that time, the donor was at the fag end of her life and in fact she died in February, 1986. The donee also claimed that previously the donor executed another Will in her favour in respect of the suit properties. If the donor executed a registered Deed of Will in favour of the donee in respect of the suit properties, at the fag end of her life, she was not required to execute other two deeds of gift in respect of the selfsame suit properties within six months of the execution of the so-called registered deed of Will and xvi)The donor was an old and illiterate lady. The donee being in a fiduciary position to dominate her Will, she was bound to prove that the execution of the two deeds of Will was intelligent one and that there were independent advice and mental act of the donor to execute the deeds of Will voluntarily in favour of the donee. But the donee had failed to discharge that burden of proof. (25) In consideration of the above facts and circumstances, we are of the view that the donor did not execute the transaction out of her own volition but under coercion and undue influence created upon her by the donee. Consequently, no title in respect of the suit properties could pass in favour of the donee at all. As a result, the execution of the deed of lease in favour of the defendant no.2 by the defendant no.1 could not be valid. We conclude that the two impugned deeds exhibit G and G-1 purported to have executed by the plaintiff/Isharaji Debi were vitiated by fraud, collusion, coercion and undue influence. The two deeds of gift were not the outcome of mental and physical acts of the donor. They are, therefore, void, invalid and inoperative. So the inferences drawn by the learned Trial Judge, we hold, are erroneous. (26) Accordingly, we hold that the plaint case has been duly proved by convincing oral, documentary and circumstantial evidence. But unfortunately, the learned Trial Judge decided the issues without proper appreciation of the evidence on record. The suit should have been decreed instead of dismissal of the same. The donee did not acquire any right, title and interest over the suit properties by way of the so-called impugned deeds of gift exhibit G and G-1. But unfortunately, the learned Trial Judge decided the issues without proper appreciation of the evidence on record. The suit should have been decreed instead of dismissal of the same. The donee did not acquire any right, title and interest over the suit properties by way of the so-called impugned deeds of gift exhibit G and G-1. The plaintiff was, therefore, entitled to get decree and reliefs as prayed for. The impugned judgment and decree passed by the learned Trial Judge cannot be upheld. So the appeal succeeds. It is allowed. The judgment and decree dated 27.04.1989 passed by the learned Assistant District Judge, Additional Court, Hooghly is hereby set aside. The suit stands decreed on contest with costs against the defendant nos.1, 2 and 3 and ex parte without costs against the defendant no.4. (27) The plaintiff do get decrees in terms of prayer (a), (b), (c) and (e) of paragraph 21 of the plaint as appearing in page no.21 of the Paper Book. Draw up decree accordingly. Considering the circumstances, there will be no order as to costs. Interim order, if any, is hereby vacated. (28) Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings.