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2012 DIGILAW 242 (HP)

Himti v. Maya and Connected Matters

2012-05-02

KULDIP SINGH

body2012
JUDGEMENT Kuldip Singh, J The plaintiff and proforma defendant No.2 are aggrieved by the judgment, decree dated 17.1.2001 passed by learned District Judge, Chamba in Civil Appeal No.62 of 2000, affirming judgment, decree dated 24.7.2000 passed by learned Sub Judge, Chamba in Civil Suit No.146 of 1994. In this judgment the parties are referred as plaintiff and defendants. 2. The facts in brief are that Kumheli filed a suit for declaration and possession, pleading that land measuring 91 bighas 1 biswa in Mohal Ghundera, Tehsil Salooni in the jamabandi 1990-91 has been recorded in the name of Lahori and proforma defendants. Kumheli died and she wassubstituted by Himti. It has been pleaded that Kumheli enjoined the conjugal society of her husband Lahori for more than forty five years as his legal wedded wife. Lahori seven or eight years back developed illegal relations with Maya defendant No.l. Kumheli filed maintenance petition under Section 125 Cr.P.C. against Lahori which was allowed. Kumheli filed execution and also civil suit for permanent prohibitory injunction restraining Lahori from alienating immovable property including the suit land.The defendant No.1 dominated the Will of Lahori and succeeded in getting the suit land transferred in her favour by alleged gift, playing fraud and inducement etc. 3. The factum of gift came to the knowledge of Kumheli after the death of Lahori in the year 1994. The defendant No.1 was asked to cancel the gift deed as well as mutation No.133 as she is not the legal heir of Lahori. The gift has been made for immoral purposes against the public policy and is liable to be set aside. The defendant No.1 refused to cancel the gift and therefore, suit was filed by Kumheli for declaring gift dated 15.9.1993 attested on 23.9.1993 alongwith mutation No.133 dated 31.1.1994 null and avoid, in operative against the rights of plaintiff with decree of possession of the suit land. 4.The suit was contested by defendant No.1 by filing written statement. The preliminary objections of maintainability, cause of action, estoppel were taken. On merits, it was pleaded that Lahori contracted second marriage with defendant No.1. Kumheli harassed Lahori till his death. Lahori executed gift deed voluntarily in favour of defendant No.1. The prayer has been made for dismissal of the suit. The preliminary objections of maintainability, cause of action, estoppel were taken. On merits, it was pleaded that Lahori contracted second marriage with defendant No.1. Kumheli harassed Lahori till his death. Lahori executed gift deed voluntarily in favour of defendant No.1. The prayer has been made for dismissal of the suit. 5.On the pleadings of the parties the following issues were framed:- 1.Whether the gift deed dated 15.9.1993 attested on 23.9.1993 executed by Shri Lahori in favour of defendant No.1 is liable to be set aside as alleged? ....OPP 2.Whether mutation No.133 attested in favour of defendant No.1 is wrong and illegal as alleged? ...OPP 3. Whether the plaintiff has a cause of action?. .OPP 4. Whether the plaintiff is entitled to a decree for possession of the suit land as alleged?. .OPP 5. Whether the suit is not maintainable in the present form? . .OPD 6. Whether the plaintiff is estopped from filing the present suit by her act and conduct?..OPD 7. Whether defendant No.1 is the wife of Shri Lahori as alleged, if so, its effect?..OPD8.Relief 6.Issues No.,1 ,2,4,6 and 7 were answered in negative, issues No.3,5 in affirmative and the suit was dismissed on 24.7.2000. In appeal learned District Judge on 17.1.2001 has affirmed the judgment, decree of the trial Court, hence second appeal which has been admitted on following substantial question of law:- “Whether a presumption can be drawn under the law that the concubine is always in a position to exercise undue influence in the matter of execution of gift in her favour, particularly when the donor has thrown out of the house his legally wedded wife?” 7. Heard and perused the record.On behalf of the appellants, it has been submitted that defendant No.1 was concubine of Lahori. The defendant No.1 dominated the Will of donor Lahori. The donor turned out Kumheli his legally wedded wife from matrimonial home.Lahori was under the influence of donee defendant No.1, who procured gift deed Ex.P-5 from Lahori. The gift is not voluntary; it is a result of influence exerted by donee over Lahori. The gift Ex.P-5 has not been executed by donor freely and therefore, the same is liable to be set aside. 8. The learned counsel for respondent No.1 has supported the impugned judgment, decree. The gift is not voluntary; it is a result of influence exerted by donee over Lahori. The gift Ex.P-5 has not been executed by donor freely and therefore, the same is liable to be set aside. 8. The learned counsel for respondent No.1 has supported the impugned judgment, decree. He has submitted that two Courts below on appreciation of evidence on record have recorded a finding of fact that Lahori had executed a gift Ex.P-5 in favour of defendant No.1. The evidence in second appeal cannot be re-appreciated. There is no presumption in law that concubine is always in a position to dominate the Will of the person with whom she lives for executing gift or Will. In any case in the present case nothing has been placed on record to establish that donee influenced Lahori for gift Ex.P-5. It has been submitted that defendant No.1 served Lahori and pleased by the services rendered by defendant No.1 Lahori executed a gift Ex. P-5 in favour of defendant No.1. 9. The issue No.1 is regarding gift dated 15.9.1993 attested on 23.9.1993. The onus of this issue was placed on plaintiff. It has been contended on behalf of the appellants that gift deed Ex.P-5 is the result of undue influence exerted by defendant No.1 over Lahori who was of feeble and weak mind. The defendant No.1 got transferred the suit land in her favour from Lahori by practicing fraud and inducement. The learned counsel for the appellants has relied Inche Noriah binte Mohamed Tahir v. Shaik Allie bin Omar bin Abdullah Bahashuan, AIR 1929 PC 3 in which it has been held that the relations between the donor and donee were sufficient to raise the presumption of the influence of the donee over the donor and to render it incumbent upon him to prove that the gift was the spontaneous act of the donor acting under circumstances which enabled her to exercise an independent will, and which justified the Court in holding that the gift was the result of the free exercise of her will.In that case gift dated 18.4.1922 by appellant in favour of respondent was involved. 10. On behalf of the appellants Mt. 10. On behalf of the appellants Mt. Sewti vs.Rattan AIR 1951 HP 54 has been relied in which it has been held that the relationship existing between the parties was sufficient to raise a presumption that the deed had been obtained through undue influence which rendered the fraud possible.It was therefore, incumbent upon the nephew to prove that the deed was the spontaneous act of the donor acting under circumstances which enabled her to exercise an independent will. It was held on the evidence that the nephew had failed to discharge the onus and the deed had been obtained by misrepresentation and fraud. 11 The learned counsel for the appellants has referred Ballo v. Paras Ram, AIR 1972 HP 33 in which it has been held that burden of proving absence of undue influence rests upon the defendant if it is established by the evidence in case the defendant was in a position to dominate his will and that the transaction was unconscionable. In Smt. Kartari v. Kewal Krishan and others AIR 1972 HP 117, it has been held that if the transaction of gift appears to be unconscionable, the burden of proving that the contract was not induced by undue influence lies upon the person who was in a position to dominate the will of the donor. 12. The learned counsel for the respondent No.1 has referred Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib and others AIR 1967 SC 878 in which the Supreme Court has held that it is well settled law that undue influence is the same in the case of a gift inter vivos as in the case of a contract. It has also been held that merely because the parties were nearly related to each other no presumption of undue influence can arise. The Supreme Court has further held that before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. 13 In the present case the gift Ex.P-5 is by Lahori in favour of defendant No.1. It has come on record that there was litigation for maintenance between Lahori and Kumheli. The defendant No.l. was living with Lahori. 13 In the present case the gift Ex.P-5 is by Lahori in favour of defendant No.1. It has come on record that there was litigation for maintenance between Lahori and Kumheli. The defendant No.l. was living with Lahori. In the plaint there is no pleading that Lahori was illiterate and was not in a position to understand what was good or bad for him. The plaintiff Kumheli was not living with Lahori, it was too much for her to expect that on one hand she was in litigation with Lahori and on the other hand Lahori should not deal with his property ignoring her. In normal course Lahori was not incompetent to deal with his property by way of gift or otherwise. The gift Ex.P-5 has been challenged on the grounds of undue influence, fraud and also on account of advantage taken by defendant No.1 due to feeble and weak state of mind of Lahori. 14. In the plaint pleadings of fraud, undue influence are not in conformity with Order 6 Rule IV CPC. No particulars of fraud and undue influence have been pleaded. DW-1 Maya has stated that she was married with Lahori 16/17 years ago. She is still living in the house of Lahori, who executed a gift in her favour. Kumheli left Lahori about 15/16 years ago.She has been generally cross- examined by putting questions that gift has been obtained by her by playing fraud. She has not been cross-examined how she influenced or played fraud for obtaining gift Ex.P-5. There is no cross- examination of DW-1 that Lahori was feeble and weak mind person nor it has been put to DW-1 that Lahori was illiterate and could not understand his own interest. 15. PW-1 Himati has stated that Lahori was her brother. After the death of Kumheli she is entitled to the estate of Lahori. She has shown her ignorance that Lahori had executed gift in favour of defendant No.1. In her statement she has not whispered a word that gift deed Ex. P-5 was procured by defendant No.1 by undue influence or playing fraud. She has not stated that Lahori was illiterate or he was not capable of understanding about his own welfare. On behalf of the plaintiff gift deed Ex.P-5 was tendered in evidence. In her statement she has not whispered a word that gift deed Ex. P-5 was procured by defendant No.1 by undue influence or playing fraud. She has not stated that Lahori was illiterate or he was not capable of understanding about his own welfare. On behalf of the plaintiff gift deed Ex.P-5 was tendered in evidence. There is nothing on record to show that defendant No.1 was in a position to dominate the will of Lahori nor on the basis of material on record a presumption could be drawn that defendant No.1 obtained gift Ex.P-5 in her favour from Lahori by exerting undue influence. 16. In Subhas Chandra Das Mushib supra the Supreme Court has held that merely because the parties were nearly related to each other no presumption of undue influence can arise. Therefore, it can be safely held that merely living of defendant No.1 as concubine with Lahori no presumption in law can be drawn that defendant No.1 was in a position to exercise undue influence in the matter of execution of gift in her favour. 17.The appellants have miserably failed to place on recordmaterial to draw presumption that defendant No.1 obtained gift Ex.P­5 from Lahori by exerting undue influence. There is no evidence of fraud or misrepresentation on the part of defendant No.1 for obtaining gift Ex.P-5 from Lahori. The two Courts below have rightly appreciated the material on record. The view taken by two Courts below emerges from the evidence on record. The impugned judgment is not perverse and is based upon admissible evidence. In second appeal re-appreciation of evidence is not permissible. There is no merit in the appeal. The above substantial question of law is decided against the appellants. 18. In view of above, appeal fails and is accordinglydismissed with no order as to costs.