JUDGMENT Justice Sanjay Karol, J. Sh. Jeet Singh owned certain agricultural land in Revenue Estate Shimla. After his death Sh. Jai Singh, his only son inherited the same. Sh. Jai Singh was married to Smt. Mohini Devi and through their wed lock, three children, namely sons Sh. Krishan Singh and Sh. Narender Singh and daughter Ms. Mauli Devi were born. Allegedly during his life time Sh. Jai Singh partitioned his properties between his sons Sh. Krishan Singh and Sh. Narender Singh, excluding both Smt. Mohini Devi and Smt. Mauli Devi from their right of inheritance. The suit properties situated in village Patiog, by virtue of this alleged partition dated 20.6.1971, fell to the share of his youngest son Sh. Narender Singh, who incidentally had to manage certain immovable properties of his in-laws and as such stayed with his family at a different village, Rahi, which is slightly far off from Patiog. Sh. Jai Singh expired on 30.6.1977. Over the agricultural land in village Patiog, a residential house of four rooms was constructed. Sh. Narender Singh permitted his mother Smt. Mohini Devi to reside in the said house. She in turn inducted Sh. Uma Datt as a tenant in one of the rooms of the said residential house. On 26.4.1982, Sh. Narender Singh died when he was just 45 years of age. It appears that his family continued to stay at village Rahi. Sh. Krishan Singh also did not live with his mother, whose residence and kitchen stood separated since the time of his father. Smt. Mohini Devi executed two deeds of gift dated 10.10.1984 and 24.12.1985 in favour of Sh. Uma Datt which were separately registered on different dates with the Sub Registrar. Gift deed dated 10.10.1984 pertained to the entire residential house where she was residing and included the tenanted portion and gift deed dated 24.12.1985 pertained to the remaining agricultural land in village Patiog. Factum of execution of these gift deeds came to the notice of legal heirs/successors in interest of Sh. Jai Singh/Narender Singh who instituted separate proceedings before the Civil Courts at Shimla. 2. Civil Suit No. 108/1 of 1985, titled as Smt. Vijay Laxami & others v. Smt. Sarju Devi & others, was instituted on 20.5.1985 only by the wife and children of late Sh. Narender Singh against Sh. Uma Datt (defendant No. 1), Smt. Mohini Devi (defendant No. 2), Sh. 2. Civil Suit No. 108/1 of 1985, titled as Smt. Vijay Laxami & others v. Smt. Sarju Devi & others, was instituted on 20.5.1985 only by the wife and children of late Sh. Narender Singh against Sh. Uma Datt (defendant No. 1), Smt. Mohini Devi (defendant No. 2), Sh. Krishan Singh (defendant No. 3) and Ms. Mauli Devi (defendant No. 4), in which plaintiffs prayed for the following reliefs:- “It is therefore prayed that the suit of the plaintiffs may kindly be decreed against the defendants as follows: (i) A declaratory decree be passed in favour of the plaintiffs against defendants that the plaintiffs are owners of the area and building situated upon Khasra No. 19/1 measuring 6 biswas as per tatima attached with the suit (and also as attached with the gift deed dated 10.10.84) as registered in the office of Sub Registrar, Shimla and as a consequential relief to restrain defendant No. 1 & 2 to use gift deed No. 33, dated 10.10.84 in respect of the suit property in any manner. (ii) A decree for mandatory injunction be issued in favour of the plaintiffs against defendants No. 1 & 2 requiring them to put the plaintiffs in possession of the area and built up structure existing on area of khasra No. 19/1 situated at Mauja Pateog, Teh & Distt. Shimla as per Jamabandi for the year 1978-79. (iii) In the alternative after declaring the plaintiffs to be owners of the area and built up structure upon Khasra No. 19/1, a decree for possession thereof may kindly be passed against the defendants.” [Emphasis supplied] 3. Whereas on 12.6.1986 Smt. Mohini Devi individually instituted Civil Suit No. 86-1 of 1986, titled as Smt. Mohini Devi and others v. Smt. Sarjoo Devi and others, arraying Sh. Uma Datt as defendant No. 1, Ms. Mauli Devi as defendant No. 2, Sh. Krishan Singh as defendant No. 3 and legal heirs of Sh. Whereas on 12.6.1986 Smt. Mohini Devi individually instituted Civil Suit No. 86-1 of 1986, titled as Smt. Mohini Devi and others v. Smt. Sarjoo Devi and others, arraying Sh. Uma Datt as defendant No. 1, Ms. Mauli Devi as defendant No. 2, Sh. Krishan Singh as defendant No. 3 and legal heirs of Sh. Narender Singh (plaintiffs in Civil Suit No.108/1 of 1985) as defendants No. 4 to 7, praying for the following reliefs:- “It is, therefore, prayed that a declaration be given in favour of the plaintiff and against defendant No.1 to the effect that the gift deeds dated 10.10.1984 registered in the office of Sub Registrar Shimla at Serial No. 584 Book No. 1 Volume 36 on page 120 dated 22.10.1984 with respect to a house of 4 rooms comprised in Khasra No. 19/1 Village Patoeg and gift deed dated 24.12.1985 registered in the office of Sub Registrar, Shimla at Serial No. 689 Book No. 1 Volume 37 on page 53 on 3.12.1985 with respect to the land comprised in Khasra No. 9, 43, 605/25, 603/25, 601/25, 600/25 and 602/25 Village Pateog Pargna Jajhot, Teh & Distt. Shimla are illegal, null and void and do not confer any right on the defendant No.1.” [Emphasis supplied] 4. Both these suits were primarily contested by Sh. Uma Datt who expired during trial and his legal representatives (referred to as contesting defendants) were brought on record. 5. The trial Court decreed Civil Suit No. 108/1 of 1985 in terms of judgment and decree dated 24.5.1993, which stands affirmed by the learned District Judge, Shimla in terms of judgment and decree dated 4.5.1995 passed in Civil Appeal No. 69-S/13 of 1993, titled as Smt. Sarju Devi and others v. Smt. Vijay Laxmi and others. Hence the contesting defendants have filed instant RSA No. 250 of 1995. 6. Civil Suit No. 86-1 of 1986 was dismissed by the trial court in terms of judgment and decree dated 31.8.1992, which in the plaintiff’s appeal stands reversed by the learned Addl. District Judge, Shimla in terms of judgment and decree dated 24.10.1997 passed in Civil Appeal No. 75-S/13 of 1992, titled as Smt. Mauli Devi and others v. Smt. Sarjoo Devi and others. The same is now subject matter of instant RSA No. 117 of 1998 filed by the contesting defendants. 7. District Judge, Shimla in terms of judgment and decree dated 24.10.1997 passed in Civil Appeal No. 75-S/13 of 1992, titled as Smt. Mauli Devi and others v. Smt. Sarjoo Devi and others. The same is now subject matter of instant RSA No. 117 of 1998 filed by the contesting defendants. 7. These appeals, filed under Section 100 of the Code of Civil Procedure, were heard together and though dealt with separately, are being disposed off by a common judgment. 8. Mr. Bhupinder Gupta, Sr. Advocate, learned counsel for the appellants, Sh. G.D Verma, Sr. Advocate and Sh. Ajay Kumar, Sr. Advocate have been heard on merits. I shall first deal with RSA No. 250 of 1995 which stands admitted on the following substantial questions of law:- “1. Whether under the circumstances of the case Jai Singh was entitled to partition the property amongst his two sons without giving share to his wife? 2. Whether the deed of partition was admissible in evidence? 3. Whether Smt. Mohini Devi would inherit 1/4th share in the property or 1/3rd share in the property in dispute? 4. Whether the partition effected by the said Jai Singh was a valid partition in law? If not, its effect. 5. Whether a decree for possession could be passed in view of the facts that admittedly the appellant was inducted as a tenant initially and in case the partition declared to be void or voidable whether the status quo ante would not come into effect and whether the decree for possession could be passed?” 9. In the suit in question, i.e Civil Suit No. 108/1 of 1985 it is alleged by the plaintiffs that Sh. Jai Singh partitioned his immovable properties on 20.6.1971 vide deed of partition (Mark-X/Ext. CW1/A) of the said date and the suit property fell to the exclusive share of their predecessor-in-interest Sh. Narender Singh. Since Smt. Mohini Devi had no right, title or interest in the same, hence, she could not have executed gift deed dated 10.10.1984. The challenge is essentially on the ground of prohibition in law by custom. 10. Significantly in the said suit, Sh. Uma Dutt and Smt. Mohini Devi filed a joint written statement dated 9.9.1985, denying execution of partition as alleged by the plaintiffs. It was specifically pleaded that since Smt. Mohini Devi was being looked after by Sh. The challenge is essentially on the ground of prohibition in law by custom. 10. Significantly in the said suit, Sh. Uma Dutt and Smt. Mohini Devi filed a joint written statement dated 9.9.1985, denying execution of partition as alleged by the plaintiffs. It was specifically pleaded that since Smt. Mohini Devi was being looked after by Sh. Uma Dutt, as such, out of love and affection she executed the gift deed in question. Record reveals that on 20.9.1986 Smt. Mohini Devi filed another written statement pleading that she is an illiterate, rustic and simpleton lady and Sh. Uma Dutt who is a clever and shrewd person, by taking advantage of her strained family relation, poisoned her mind and prejudiced her against her own family members. Schemingly, he demoralized her and by practicing fraud/exercising undue influence/deceivingly obtained her thumb impressions on various documents. Having learnt the same she has now taken remedial measures. The other defendants did not contest the suit. 11. Based on the pleadings of the parties, Trial Court framed the following issues:- “1. Whether the gift deed executed by defendant No. 2 in favour of defendant No. 1 is illegal, void inoperative against the right, title and interest of the plaintiffs? OPP 2. Whether the plaintiffs are owners in possession of the suit property as alleged in para 6 of the plaint? OPP 3. Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for? OPP 4. Whether the plaintiffs in the alternative are entitled to possession of the suit property as prayed for? OPP 5. Whether the suit in the present form is neither competent nor maintainable as alleged? OPD-1 6. Whether the plaintiffs are estopped from filing the present suit as alleged? OPD-1 7. Relief.” 12. After trial, the Trial Court decreed the plaintiffs’ suit. Plaintiffs’ contention of family partition through deed dated 20.6.1971 (MarkX/Ext. CW1/A) was rejected by the trial Court as it was found that no partition had actually taken place. However gift deed dated 10.10.1984 (Ext. DW1/A) was held to be invalid only for the reason that it exceed the share of Smt. Mohini devi. 13. However in the contesting defendants’ appeal, lower Appellate Court partly reversed such findings of fact. It held that during the life time of Sh. Jai Singh, property stood partitioned in terms of the said deed and as such Sh. DW1/A) was held to be invalid only for the reason that it exceed the share of Smt. Mohini devi. 13. However in the contesting defendants’ appeal, lower Appellate Court partly reversed such findings of fact. It held that during the life time of Sh. Jai Singh, property stood partitioned in terms of the said deed and as such Sh. Narender Singh was the exclusive owner of suit property. Specifically it is held that Smt. Mohini Devi did inherit, to a limited extent, share in the estate of her son Sh. Narender Singh, but since gift deed was in excess of her share, hence the same was illegal. 14. On the question of partition, lower Appellate Court based its findings by solely relying upon deed of partition (Mark-X/Ext. CW1/A). Findings of fact rendered by the trial Court were not specifically dealt with. 15. Sh. Jai Singh could have partitioned his exclusive property between his two sons to the exclusion of his wife and daughter. But the question is did he actually do so. Now perusal of this deed of partition shows that it is inpresentie. It is an instrument of partition and not a memorandum recording partition which took place prior to its execution. Undisputedly this document is not registered. Registration of a document, in the instant case, was absolutely essential as the partition is in presentie and not a memorandum of partition which took place prior to its execution. In the instant case, the document itself creates an interest in the immovable property. On this aspect provisions of Section 54, 107, 123 of the Transfer of Property Act, 1882 read with Section 17 and Section 49 of the Indian Registration Act, 1908 are evidently clear. 16. The Apex Court in Suraj Lamp and Industries Private Limited through Director v. State of Haryana and Another, (2009 ) 7 SCC, 363 has emphasised the purpose, need and benefit of registration of a document in the following terms:- “The Registration Act, 1908 was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is, or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see record and enquire and ascertain what the particulars are, and as far as land is concerned, what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to property may be affected and secure extracts/copies duly certified.” 17. In Kashinath Bhaskar Datar v. Bhaskar Vishweshwar, A.I.R. 1952 Supreme Court, 153, the Apex Court has held that if the document itself creates an interest in immovable property, the fact that it contemplates execution of another document would not exempt it from registration under the provisions of Section 17 of the Registration Act, 1908. To this effect are also subsequent decisions of the Apex Court in Nani Bai v. Gita Bai Kom Rama Gunge, A.I.R. 1958 S.C. 706,Siromani v. Hemkumar and others & Sirmomani and another v. Dinmani, AIR 1968 S.C. 1299 and K.G. Shivalingappa and Others v. G.S. Eswarappa and Others (2004) 12 SCC 189 . 18. In Kale and Others v. Deputy Director of Consolidation and Others (1976) 3 SCC 119 , the Apex Court also clarified that family arrangement can be oral, registration of which is not necessary. However, registration would be necessary only if terms of the family arrangement are reduced into writing and the instrument is of partition and not a mere memorandum prepared after the family arrangement had already been arrived at. However, registration would be necessary only if terms of the family arrangement are reduced into writing and the instrument is of partition and not a mere memorandum prepared after the family arrangement had already been arrived at. Even this Court in Bhagwat Parshad v. Mukat Lal and Others, ILR 1986 .H.P (Vol.XV), 190 has held so. 19. The Apex Court in Narendra Gopal Vidyarthi v. Rajat Vidyarthi (2009) 3 SCC 287 created a distinction of registration of a gift/donation made in cash, which did not require registration. 20. In Rana Vidya Bhushan Singh v. Ratiram, 1969 (1) UJ 86 SC, the Apex Court has held that :- “A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring assigning, limiting or extinguishing a right to immovable property.” 21. Hence in the absence of registration of the deed of partition, except for collateral purposes, the lower Appellate Court could not have looked into the same, as it is not a legal piece of evidence and by solely relying upon the same, legally erred in arriving at its conclusion that Sh. Jai Singh, during his life time, had partitioned his properties amongst his two sons and as such, the suit property exclusively fell to the share of his younger son Narender Singh. Significantly, lower Appellate Court has not held that the suit property stood partitioned by metes and bounds, which fact was also not proved by other contemporaneous material. It also did not hold that the document fell within one of the exceptions contained in Section 17 of the Registration Act and as such did not require registration. It also did not hold that for collateral purposes the same could be looked into. 22. I am of the considered view that there is nothing on record of this case to show that Sh. Jai Singh ever partitioned his properties during his life time so as to make Sh. Narender Singh to be the exclusive owner of the suit property. Sh. Jai Singh died almost six years after execution of Deed of partition. There is no documentary evidence to show that either during his life time, or for that matter life time of Sh. Jai Singh ever partitioned his properties during his life time so as to make Sh. Narender Singh to be the exclusive owner of the suit property. Sh. Jai Singh died almost six years after execution of Deed of partition. There is no documentary evidence to show that either during his life time, or for that matter life time of Sh. Narender Singh, entries effecting family partition were ever got recorded any where, much less in the revenue records. 23. Coming to the ocular evidence of this case, plaintiff Smt. Vijay Laxmi (PW-1) admits that domestic partition was not registered. She states that even at the time of partition, Sh. Jai Singh constructed two rooms out of family expenses. She admits that even during the life time of her husband and her mother-in-law, Sh. Uma Datt was occupying two rooms as a tenant. Now this totally falsifies the plea of partition. Admittedly, Sh. Uma Datt was inducted tenant by Smt. Mohini Devi and not Sh. Jai Singh or Sh. Narender Singh. Significantly, challenge to the gift deed is only on the ground of prohibition in law/non existence of customary rights of non alienation of property to an outsider. Now except for her bald statement, there is nothing on record to establish any such custom. Also there is no statutory law which prohibited transfer in favour of Sh. Uma Datt. Significantly in this case Smt. Mohini Devi did not step into the witness box herself or through her attorney and this witness does not even whisper about any fraud/ undue influence/ indoctrination on the part of Sh. Uma Datt. In the given circumstances, it was incumbent upon Smt. Mohini Devi to explain the admission made by her in her joint written statement. Significantly, such admissions were not even withdrawn. Further this witness admits that only Smt. Mohini Devi was residing in village Patiog whereas she was residing with her husband and family in another village Rahi. This only lends credence to the plea taken in the original joint written statement. Here it may be noticed that neither Ms. Mauli Devi nor Sh. Krishan Singh contested the suit or deposed either in favour or against the contesting parties. 24. Sh. Anokhi Ram (PW-2) is a witness to the deed of partition but his testimony does not establish that the same was ever acted upon. Sh. Here it may be noticed that neither Ms. Mauli Devi nor Sh. Krishan Singh contested the suit or deposed either in favour or against the contesting parties. 24. Sh. Anokhi Ram (PW-2) is a witness to the deed of partition but his testimony does not establish that the same was ever acted upon. Sh. Nareshwar Singh (PW-3) testifies that family partition did not take place in his presence but then he subsequently qualifies his version by stating that he learnt about the same only through his elders. Testimony of Smt. Shanti Devi (PW-4) also does not establish the fact that the property actually stood partitioned in terms of the deed. 25. In the instant case, as noticed earlier, there is nothing on record to even prima facie establish that partition actually took place prior to execution of the deed. Also there is no evidence to show that parties ever acted thereupon. 26. In K.B. Saha and Sons private Limited v. Development Consultant Limited (2008) 8 SCC 564 , the Apex Court has held that: (i) a document required to be registered, if unregistered, is not admissible in evidence under Section 49 of the Registration Act, (ii) such an unregistered document can however be used as an evidence for collateral purpose as provided in Proviso to Section 49 of the Registration Act, (iii) a collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration, (iv) a collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards, and (v) if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 27. Section 49 of the Registration Act, creates a presumption of a valid execution of a document [Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and Others, (2009) 12 SCC 101 ]. The said presumption is however, rebuttable and in this regard provisions of Sections 91 and 92 of the Indian Evidence Act, 1872 are evidently clear. 27. Section 49 of the Registration Act, creates a presumption of a valid execution of a document [Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and Others, (2009) 12 SCC 101 ]. The said presumption is however, rebuttable and in this regard provisions of Sections 91 and 92 of the Indian Evidence Act, 1872 are evidently clear. In view of the admission made by Smt. Mohini Devi in her first written statement jointly filed with Sh. Uma Dutt, wherein case of Sh. Uma Dutt stands specifically and unambiguously admitted, and which admission has not been withdrawn in her second written statement, which is more clarificatory in nature, in view of provisions of Section 58 of the Indian Evidence Act, 1872, such admissions were not required to be proved by defendant Sh. Uma Dutt. 28. Hence it cannot be said that plaintiff has been able to prove the fact that the property in question ever stood partitioned by Sh. Jai Singh in favour of his son Sh. Narender Singh. 29. Mr. G.D. Verma, learned Sr. Counsel has invited my attention to various decisions rendered by the Courts, ratio of which, I find is not applicable to the instant facts. 30. Decision of the Four Judge Bench of the Apex Court in Javer Chand and others v. Pukhraj Surana, AIR 1961 SC 1655 is of not much help to the plaintiff. The Court was not dealing with the provisions of the Registration Act, 1908 but the Indian Stamp Act, 1899. Section 36 of the Stamp Act itself stipulates that where an instrument, which has not been sufficiently stamped, is admitted in evidence, then except for certain situations as stipulated under Section 61 of the said Act, the same cannot be questioned subsequently on the ground that the instrument was not duly stamped. 31. In M. Venkataramana Hebbar v. M. Rajagopal Hebbar and Others (2007) 6 SCC 401 , the Apex Court in the given facts held that registration of the instrument of family partition was not necessary, as it assumed that relinquishment of the property was to take effect in a future date. 32. In Narendra Kante v. Anuradha Kante and Others (2010) 2 SCC 77 , the Apex Court was dealing with a case where interim injunction had been granted on the strength of an unregistered family partition. 32. In Narendra Kante v. Anuradha Kante and Others (2010) 2 SCC 77 , the Apex Court was dealing with a case where interim injunction had been granted on the strength of an unregistered family partition. The same was relied upon only to form a prima facie view about the family arrangement which was subject to trial. 33. In Hari Shankar Sighania and Others v. Gaur Hari Sighania and Others (2006) 4 SCC 658 , the Apex Court simply held that a family settlement is treated differently from any other formal commercial settlement as family settlement ensures peace and good will among the family members. Technicalities of limitation etc. should not be put at risk for implementation of a settlement drawn by a family. But then the Court specifically did not deal with the question as to whether the instrument of partition, unlike the memorandum of partition, is to be registered or not. 34. Gift deed (Ext. DW 1/A) is proved through Sh. Ganesha Nand (DW-2) special power of attorney of Smt. Prabhu Devi wife of Sh. Uma Dutt. Now admittedly neither this witness nor Smt. Prabhu Devi were present at the time of execution of the same. However this witness states that the deed was witnessed by Sh. Gokal Chand and Sh. Nand Lal Garg in the presence of Sh. Krishan and other family members of Smt. Mohini Devi. Only Sh. Nand Lal Garg (DW4), has been examined in court who categorically states that gift deed was scribed by Chaudhary Kangu Ram and he witnessed the same. 35. Plaintiffs have even prima facie failed to show that the gift deed in question was executed either by exercising undue influence/fraud or is illegal in any other manner. Smt. Mohini Devi has not also stepped into the witness box to prima facie substantiate the plea taken by her in her second written statement filed after a considerable period of time. Gift deed cannot be said to be illegal only on the ground that share, other than the one to which donor is legally entitled to, was sought to be transferred in favour of the donor. At least with respect to the share of the donor the same would be applicable. The provisions of Transfer of Property Act are evidently clear in this regard. Gift deed has been registered and witnessed in accordance with law. The donee has accepted the same. At least with respect to the share of the donor the same would be applicable. The provisions of Transfer of Property Act are evidently clear in this regard. Gift deed has been registered and witnessed in accordance with law. The donee has accepted the same. The stand of the donor that the document was executed by exercising undue influence/fraud has neither been proved nor held to be tenable on facts and law. Consequently, the lower Appellate Court erred in returning perverse finding to the effect that gift is illegal only on account of transfer of rights in excess of the donor. In any event, it is not the case of the parties that Smt. Mohini Devi as a legal heir could not have, to a limited extent, inherited the estate of Sh. Narender Singh. Also Gift deed is executed after the death of Sh. Narender Singh, on which date, in any event, she was co-owner as a successor-in-interest as has been rightly held by the lower appellate Court. 36. Mr. G.D. Verma, learned Sr. Counsel has relied upon the following decisions of the Apex Court to contend that concurrent findings of fact can not be interfered with by this Court and also that this Court can not interfere even if the lower appellate Court has not adverted to findings or reasoning adopted by the trial Court: State of H.P. and another v. Akshara Nand, AIR 2000 Supreme Court 1828; E. Mahboob Saheb v. N. Sabbarayan Chowdhary and others, AIR 1982 Supreme Court 679; Arumugham v. Sundarambal and Another, (1999) 4 SCC 350 ; Thiagarajan and others v. Venugopalaswamy B. Koil and others, AIR 2004 Supreme Court 1913; Ms. Labanya Neogi v. M/s W.B. Engineering Co., AIR 1999 Supreme Court 3331. 37. Having minutely examined the same, I am afraid, the ratio of law laid down therein does not apply to the instant facts. In the instant case, the findings of fact are not concurrent in nature. Also, reasoning adopted by the Courts, in both the cases are not based on complete and proper appreciation of law, evidence and pleadings of the parties. It has led into perversity resulting into travesty of justice, warranting interference by this Court. 38. Thus other findings returned by the lower Appellate court, being perverse and illegal are required to be set aside. It has led into perversity resulting into travesty of justice, warranting interference by this Court. 38. Thus other findings returned by the lower Appellate court, being perverse and illegal are required to be set aside. The Court below has neither correctly applied the provisions of law nor properly appreciated the principles laid by the Apex Court in its various judicial pronouncements. 39. The Courts below also erred in decreeing the plaintiffs’ suit with regard to the relief of possession. Sh. Uma Dutt was in possession of the premises both as a tenant and a co-owner. Whether his tenancy extinguished, after having become a co-owner is a question which has not been urged or adverted to in these proceedings. With the tenant acquiring right of ownership, his tenancy does not extinguish [Labanya Neogi (MS) through LRs. Power of Attorney Holder Shri DR Subhasis Neogi, v. W.B. Engineering Company, (1999) 7 SCC 431 . Whether ejectment of a tenant was to take place under the provisions of H.P. Rent Control Act or not is a question which also is not being decided in these proceedings for the simple reason that Sh. Uma Dutt being a co-owner could not have been ejected from the portion in excess of his share, except in accordance with law. 40. Questions of law are answered accordingly. Hence the impugned judgment and decree dated 4.5.1995 passed by the learned appellate Court is set aside and the suit filed by the plaintiffs is dismissed. 41. Now coming to the other appeal being RSA No.117/98, I find it stands admitted on the following substantial questions of law:- “1. When the Gift Deed was assailed by the Donor on the ground of fraud and misrepresentation, was not it incumbent for the donor to have stepped into the witness box in order to prove such facts which constituted the alleged fraud and misrepresentation, can the statement of the power of attorney of the plaintiff be held to be sufficient for holding the Gift to be illegal, null and void merely on the basis of conjectures and surmises? 2. 2. Whether the plaintiffs who have assailed the validity of the Gift Deed on the basis of fraud and misrepresentation, was under legal obligation to make the pleadings in accordance with law and provisions of Code of Civil Procedure, in the absence of such pleadings, is not the suit of the plaintiff liable to be dismissed for want of material particulars? 3. Whether the learned Trial Court has wrongly closed the evidence of the defendants and also applications for recalling the order of closing the evidence of the defendants? 4. Whether the Plaintiffs who have assailed the validity of the Gift Deed was under legal obligation to prove the Gift Deeds on the record in accordance with law which were assailed, could any findings be rendered against the sales in the absence of such documents have not been proved on record? 5. Whether the plaintiffs who are out of possession, can succeed in the suit by seeking merely declaration, is not the suit liable to be dismissed on this score alone for not maintainable? 6. Whether the judgment and Decree passed by the learned Lower Appellate Court is vitiated on account of misreading the pleadings and evidence and the material document on the record?” 42. In Civil Suit No. 86-1 of 1986 plaintiff Smt. Mohini Devi has pleaded that she was allowed by her son Sh. Narender Singh to use the building constructed over agricultural land in village Patiog as her residence. She was dependent upon her sons for maintenance and support. After Sh. Narender Singh died on 26.4.1982, she rented one room to Sh. Uma Datt. Due to family bickering her relations with rest of her family became strained, which fact was exploited by Sh. Uma Datt, who indoctrinated and poisoned her mind. This resulted into her “harbouring hatred against her own blood and kith and kin and “she” became mentally demoralized and depressed and “thought that her own children and grand children were up against her”. By exercising undue influence and practicing fraud, on the pretext that certain documents were required to be executed in connection with the settlement of claim pertaining to death of her son Sh. Narender Singh and in connection with the tenancy, Sh. Uma Datt got gift deeds dated 10.10.1984 and 24.12.1985 executed and registered with the Sub Registrar at Shimla. 43. By exercising undue influence and practicing fraud, on the pretext that certain documents were required to be executed in connection with the settlement of claim pertaining to death of her son Sh. Narender Singh and in connection with the tenancy, Sh. Uma Datt got gift deeds dated 10.10.1984 and 24.12.1985 executed and registered with the Sub Registrar at Shimla. 43. Significantly proforma defendants did not file any written statement in the said proceedings but Sh. Uma Datt contested the suit and filed written statement clearly denying such averments and categorically pleading that till the initiation of litigation between the parties he had been taking care of the plaintiff, who out of love and affection voluntarily executed the gift deeds in his favour. 44. Based on the pleadings of the parties following issues were framed by the Trial Court:- “Issue No. 1: Whether the plaintiff is entitled to the declaration as prayed? OPP Issue No. 2. Whether the suit of the plaintiff in the present form is not maintainable? OPD Issue No. 3: Whether the plaintiff is estopped to maintain the present suit due to her own acts, deeds, conduct and acquiescence? Issue No. 5: Whether the suit of the plaintiff is within limitation? OPP Issue No. 6: Relief.” 45. The Trial Court, based on the ocular and documentary evidence, came to the conclusion that plaintiff had failed to prove the factum of alleged fraud and undue influence exercised by Sh. Uma Datt. Consequently the suit was dismissed. 46. However before the lower appellate Court, for some strange reason parties conceded that question with regard to validity of the gift deeds, assailed in the suit, be not examined and decided as the same was subject matter of appeal (being RSA No. 250 of 1995) pending before this Court. Now this position is factually incorrect. The said RSA arose out of Civil Suit No. 108/1 of 1985 in which validity of only one gift deed dated 10.10.1984 was under challenged and not the validity of second gift deed dated 24.12.1985. 47. In the plaintiffs’ appeal, lower Appellate Court decreed the suit, without even touching findings of fact recorded by the trial Court. This Court need not necessarily interfere with the judgment of the Lower Appellate Court on this ground alone. I am conscious of the legal position in this regard. 47. In the plaintiffs’ appeal, lower Appellate Court decreed the suit, without even touching findings of fact recorded by the trial Court. This Court need not necessarily interfere with the judgment of the Lower Appellate Court on this ground alone. I am conscious of the legal position in this regard. Significantly lower Appellate Court has decreed the suit, solely on the ground that gift deeds being in excess of the plaintiff’s share were illegal. 48. Now in the present suit, undisputedly contesting defendant has not stepped into the witness box as his evidence was closed by the Court. But significantly even the plaintiff did not step into the witness box herself to prove the factum of exercise of undue influence, fraud or indoctrination. Legal heirs of Sh. Narender Singh, Ms. Mauli Devi have also not stepped into the witness box in support of her case. 49. Sh. Krishan Singh Rohal (PW-1), original defendant No. 3, entered into the witness box as General Power of Attorney of his mother Smt. Mohini Devi. He states that his mother is 86 – 87 years of age and not keeping good health for the last 3 – 4 years and her memory has weakened. But then except for this bald statement there is nothing on record to substantiate/establish this fact. Though on this aspect, I find that he himself has contradicted his version by subsequently stating that due to old age his mother cannot walk “too much”, and she is “all right” and is “not getting treatment for any disease”. Plaintiff could have got her statement recorded through a local commission, which was not done in the instant case as plea of fraud, undue influence and indoctrination was personal to her knowledge. Her examination in Court was absolutely essential, particularly when this witness admits that he himself had not been in good terms with his mother and his mother had pleaded that relations with her family members were not good. 50. Significantly in this case, plaintiff (Smt. Mohini Devi) did not take up the plea of partition by virtue of which her son Sh. Narinder Singh became exclusive owner of the properties which are subject matters of both the suits. The plea taken in the instant suit is in fact contrary to the one taken by the plaintiffs in Civil Suit No. 108/1 of 1985. Narinder Singh became exclusive owner of the properties which are subject matters of both the suits. The plea taken in the instant suit is in fact contrary to the one taken by the plaintiffs in Civil Suit No. 108/1 of 1985. It is seen that there is considerable time gap between the execution and registration of the two gift deeds. Also there is time gap between the date of filing of the first suit, the two written statements filed by Smt. Mohini Devi and the filing of the present suit by her. Civil Suit No.108/1 of 1985 was filed on 20.5.1985, in which joint written statement was filed on 9.9.1985 and the instant suit was filed on 12.6.1986. Significantly in the instant suit she has made false averments with regard to the cause of action. Gift deeds are dated 10.10.1984 and 24.12.1985. It is averred that she learnt about the factum of execution of the same by exercise of undue influence only in the month of June, 1986 but then she conveniently forgets that by this time she had already filed a joint written statement in the earlier suit. I am of the considered view that the instant suit has been filed in collusion with her own family members as plaintiff Smt. Vijay Laxmi, had already challenged the gift deed dated 10.10.1984 in the month of May, 1985 itself. It is not the case of the parties that relations between Smt. Mohini Devi and Smt. Vijay Laxmi were strained at that point in time. In fact it is her specific case that relations were strained with her son Sh. Krishan Singh Rohal. It cannot be disputed, as it is her own case, that prior to 1986 she was in fact being looked after by Sh. Uma Datt. In fact she was represented by the very same counsel. 51. Coming back to the testimony of PW-1, I find that there is nothing to even prima facie establish/ prove/ substantiate the plea of fraud/ undue influence/ indoctrination which led to execution of the gift deeds in question. This witness admits that since long, both he and his mother were not on speaking terms. He admits that for the first time his mother executed power of attorney (Ex.PA) in his favour. If this were so then how could he depose with regard to the averments made in the plaint. His testimony that Sh. This witness admits that since long, both he and his mother were not on speaking terms. He admits that for the first time his mother executed power of attorney (Ex.PA) in his favour. If this were so then how could he depose with regard to the averments made in the plaint. His testimony that Sh. Uma Datt never looked after his mother stands contradicted by the averments made in the plaint. He admits that he was separated by his father in the year 1969 and since then he has been living separately. It seems that he is also not aware of the factual aspect about the property and is also not in a position to depose clearly, correctly and truthfully with regard to the actual events. He admits that when gift deeds were prepared, his mother was not living with him. He is not aware of the events which led to execution and registration of the gift deed. Though in a passing reference, without being specific with regard to the time and place, he mentions that his mother had informed him that Sh. Uma Datt had obtained certain signatures with regard to the claim of compensation arising out of an accident in which Sh. Narender Singh had died, but then there is nothing on record to show that such document was in fact even required to be executed by her. It is also not the case of Smt. Vijay Laxmi that Smt. Mohini Devi was eligible/entitled for such compensation. Whether she was a dependent or not, has not been proved. Whether any compensation was claimed or not is also not established . This witness does not appear to be a truthful person and thus his testimony cannot be relied upon to establish the plaintiffs’ case. The land in question is 107 bighas. Part of which has also been acquired by the State Government and the amount of compensation is huge. Also there is statement of Sh. Uma Datt on record that the same shall not be withdrawn. In any event disbursement of the same would be dependent upon the outcome of the present appeal. It appears that in the year 1986 this witness brought his mother from the residential house at Patiog and then got her power of attorney executed in his favour. 52. To show that possession of the land was actually not handed over to Sh. It appears that in the year 1986 this witness brought his mother from the residential house at Patiog and then got her power of attorney executed in his favour. 52. To show that possession of the land was actually not handed over to Sh. Uma Datt, plaintiff has examined Sh. Basti Ram (PW-2) and Sh. Sania Ram (PW-3). But testimony of both these witnesses, in my considered view, uninspiring in confidence, in any event does not establish the said fact. Sh. Basti Ram states that land is in possession of Smt. Mohini Devi but then he does not know about the description or the particulars thereof. He is not even aware that Sh. Uma Datt resided in one of the rooms constructed over the land. Now Sh. Sania Ram has a different version to state. According to him land is only in possession of “Mohini Devi and her sons”. Surprisingly even though he claims to have been visiting the house of Smt. Mohini Devi yet he is not aware whether she had a tenant or not. He has even gone to the extent of stating that mental condition of Smt. Mohini Devi is not good which is no body’s case. 53. As has been noticed earlier, Sh. Uma Dutt has not stepped into the witness box in the subsequent suit, and Smt. Mohini Devi has also not stepped into the witness box in the first suit to explain the admission made by her. Significantly, even Sh. Krishan Kumar did not appear in the first suit as a witness to explain the circumstances of fraud, mis-representation and indoctrination as he has tried to explain, though unsuccessfully, in the subsequent suit as General Power of Attorney of his mother. In view of all the attending circumstances, and by taking into account the conduct of the plaintiffs and their family members, it appears that the suits are collusive in nature and have been filed only to deprive Sh. Uma Dutt of the benefits accrued to him by virtue of the gift deeds in question. 54. As already observed, the lower Appellate Court did not record any reasons for disagreeing with the findings of fact recorded by the Court below. In fact it did not even touch the same. The Court below decreed the suit on the basis of mere conjectures and surmises, rendering the impugned judgment to be perverse and illegal. 54. As already observed, the lower Appellate Court did not record any reasons for disagreeing with the findings of fact recorded by the Court below. In fact it did not even touch the same. The Court below decreed the suit on the basis of mere conjectures and surmises, rendering the impugned judgment to be perverse and illegal. Gift deeds cannot be said to be illegal only on the ground that the same were in excess of the share of the donor. At least to the extent of the share of the donor they are valid. 55. In the instant case, it cannot be said that the plaintiff, being an illiterate and a rustic villager had executed documents under undue influence/fraud or that she was indoctrinated by Sh. Uma Datt. 56. Decision of this Court referred to and relied upon by Mr. G. D. Verma, learned Senior Counsel, as reported in Shri Pawan Kumar and others v. Shri Tilak Raj and another, Latest HLJ 2011 (HP) 428 is inapplicable to the instant case. Admissions made by Smt. Mohini Devi have not been explained satisfactorily and also plaintiff cannot be said to have prima facie established its case. Gift deeds have also not been exhibited on record. 57. It cannot be said that the trial Court wrongly closed the defendants’ evidence. It rightly rejected the application for recalling the said order as record reveals that sufficient opportunity was granted to the defendants to lead the same. 58. The plaintiffs’ suit, for all the aforesaid reasons needs to be dismissed. Questions of law are answered accordingly. 59. Findings returned by the lower Appellate Court being perverse need to be reversed and the impugned judgment and decree set aside and that of the Trial Court upheld.