JUDGMENT : - Tarlok Singh Chauhan, Judge This regular second appeal has been preferred by the appellants/defendants against judgment and decree dated 7.6.2002 passed in Civil Appeal No. 35-S/13 of 2001 by learned Additional District Judge, Solan, District Solan, H.P. whereby he partly allowed and partly dismissed the appeal and modified the judgment and decree dated 18.6.2001 passed by learned Senior Sub Judge, Solan, District Solan, H.P. in Civil Suit No. 67/1 of 1997 to this extent. 2. The facts, in brief, are that Smt. Surmi, plaintiff filed the suit for declaration to the effect that the document described as Relinquishment deed and registered as document No. 705 with the Sub Registrar, Solan on dated 23.12.1993 qua the suit land is illegal, void, abinitio and of no legal consequences and also suit for permanent injunction restraining the defendant Ratti Ram from interfering into the share of plaintiff qua the suit land. It was pleaded that plaintiff is co-owner in possession of the suit land and plaintiff is about 60 years of age who is a childless widow was being maintained by Khem Singh son of Ram Rattan for more than 9 years and the land belonging to her share is also being cultivated by said Khem Singh continuously. It was pleaded that the defendant is a son of the younger brother of late husband of plaintiff who never cared for the maintenance of the plaintiff after the death of her husband. It was pleaded that as long as the plaintiff could manage her affairs she was getting it done through various persons including Khem Singh but when her health failed, she requested Khem Singh to manage the share of her property and also maintain her and in lieu of that she executed a registered Will in favour of Khem Singh which was registered with the Sub Registrar, Solan. It was pleaded that the Will was registered as document No. 82 on dated 25.6.1993. It was pleaded that the Will was registered as document No. 82 on dated 25.6.1993. It was pleaded that said Khem Singh was maintaining the plaintiff well and was also cultivating her share of land but on 18.12.1993 when Khem Singh had gone to the house of his in-laws in Village Kanda the defendant came to the house of the plaintiff and told her that her brother Mani Ram had fallen ill and asked the plaintiff to accompany him to Village Dharon and believing the defendant, the plaintiff left her house and accompanied him to village Dharon and thereafter the defendant persuaded the plaintiff to accompany him to Village Dhamkari and kept her there in the house of his sister. It was further pleaded that defendant by fraud, misrepresentation and undue influence got a document termed as relinquishment deed executed and got her thumb impression on the said document telling her that the defendant is getting his share separated from her and the said document is required for the said purpose and the plaintiff later came to know from the defendant that her entire property i.e. suit land had been got relinquished in his favour and she was no longer owner of the said land. It was pleaded that after getting the said document falsely prepared and fraudulently executed the defendant kept the plaintiff in the house of his sister at Damkari upto 31.1.1994 and on 1.2.1994 she was thrown out of the house and she had to come to the house of Khem Singh in Village Changer who was maintaining her as before. It was pleaded that the defendant played a fraud in getting the thumb impression on the above referred document termed as relinquishment deed and had gobbled up the entire property of the plaintiff and had thrown her at the mercy of Khem Singh. It was pleaded that the defendant played a fraud in getting the thumb impression on the above referred document termed as relinquishment deed and had gobbled up the entire property of the plaintiff and had thrown her at the mercy of Khem Singh. It was pleaded that the said document is not only a result of fraud, misrepresentation but is also a unconscionable document as the plaintiff, who is a old childless widow had been deprived of her property by a unscrupulous person who had never maintained her or rendered any service to her except for about six weeks in which he got the above referred document prepared under the circumstances referred to above and the plaintiff came to know about the real nature of the document on 10.2.94 when she asked Khem Singh to apply for the certified copy of the document which he did on behalf of the plaintiff and which was received on 15.2.1994. It was pleaded that the cause of action arose first on 23.12.1994 when a fraudulent, illegal and void document was got prepared and registered and subsequently on 15.2.1994 when the copy of the same was got through Khem Singh and continued on each day thereafter and prayed for decree of the suit. 3. The written statement was filed on behalf of the defendant raising preliminary objections that the plaintiff is estopped to file the present suit due to her own acts, conduct and acquiescence and the suit is not maintainable without the prayer for the consequential relief of possession and the suit is bad for non-joinder and mis-joinder of necessary party. It was pleaded that the suit is not properly valued for the purposes of court fee and jurisdiction and the plaintiff is required to assess and fix the court as per the market value of the suit land and the suit has been filed under the instigation of one Khem Singh who has connived with the plaintiff and intends to grab the property of the plaintiff with the use of undue influence and by way of fraud. It was pleaded that the plaintiff is widow of late Punia and defendant is the son of Gorkhia. It was pleaded that the plaintiff is widow of late Punia and defendant is the son of Gorkhia. It was pleaded that all the necessities of life was provided to the plaintiff by the defendant and Khem Singh, who is resident of Village Changar forcibly took away to his house on 1.2.1994 and a complaint to this effect was also lodged to the police by the wife of the defendant. It was pleaded that Khem Singh did not cultivate the suit land at any point of time and it was pleaded that there was no occasion for Smt. Surmi Devi to execute Will deed dated 25.6.1993 and the same if any, is void document and stands revoked by executing of the relinquishment deed by Smt. Surmi Devi. It was pleaded that the relinquishment deed has been executed by Smt. Surmi Devi as per her own will and plaintiff did not make any report nor notice was given by the plaintiff to the defendant after execution of the relinquishment deed in question. It was pleaded that the suit land is in possession of the defendant and the plaintiff is not entitled to any relief nor any question of dispossession arise due to the physical possession of the defendant over the suit land and prayed for dismissal of the suit. 4. The replication was filed by the plaintiff and denied all the allegations of the defendant made in the written statement and those of the plaint were reasserted. 5. On the pleadings of the parties, the learned trial Court on 12.9.1994 framed the following issues: 1. Whether the relinquishment deed registered at serial No. 705 on 23.12.1993 in favour of the defendant is the result of fraud, misrepresentation and undue influence and in unconscionable document as alleged. If so its effect? OPP 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP 3. Whether the plaintiff is estopped from filing the present suit by his act and conduct etc. as alleged? OPD 4. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 6. If the issue No.5 is proved in affirmative, what is the correct valuation of the suit? OP Parties. 7. Whether the suit is not maintainable as alleged? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 6. If the issue No.5 is proved in affirmative, what is the correct valuation of the suit? OP Parties. 7. Whether the suit is not maintainable as alleged? OPD 8. Relief. 6. After recording the evidence and evaluating the same, the learned trial Court vide its judgment and decree dated 18.6.2001 was pleased to dismiss the suit. Against this judgment and decree, the plaintiff preferred an appeal before the learned lower Appellate Court, which was partly allowed and partly dismissed by the said Court vide its judgment and decree dated 7.6.2002. 7. Aggrieved by the judgment and decree passed by the learned lower Appellate Court, the defendants have preferred the present appeal before this Court. 8. On 28.6.2002 this Court admitted the appeal on the following substantial questions of law: 1. Whether the findings of the Court below are perverse based on misreading of oral and documentary evidence particularly Ext.DX basic document of title, Ext.DY affidavit, D-2 Will and the relevant records DX-1, DX-3, DX-4 the jamabandis for the year 1970-71, 1990-91 and 1995-96 as also the statement of the witnesses Mani Ram, DW-3, DW-4, DW-6 Gian Chand and O.C. Sharma, Advocate, DW-7 and the statement of the plaintiff PW-1 ? 2. Whether the findings of the court below that the relinquishment deed Ext.DX was vitiated being a result of fraud, misrepresentation and undue influence are sustainable in law in the absence of particulars of fraud and undue influence, having been pleaded and proved? 3. Whether the defendant was independently entitled to succeed the property of Surmi Devi on the basis of Will Ex.D-2 which was duly proved and the suit at the instance of Khem Singh could be permitted to be continued after the death of Surmi Devi? 4. Whether the interpretation given by the Ld. District Judge to the provisions under Order 20 Rule 5 CPC is based on mis-construction and misreading of the authorities and are sustainable in view of the peculiar circumstances of the case? 9. I have heard Mr. K.D.Sood, Senior Advocate, assisted by Mr. Sanjeev Sood, Advocate, learned counsels for the appellants and Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Neeraj Gupta and Mr. Janesh Gupta, Advocates, learned counsels for the respondent and have also gone through the records carefully. 10. 9. I have heard Mr. K.D.Sood, Senior Advocate, assisted by Mr. Sanjeev Sood, Advocate, learned counsels for the appellants and Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Neeraj Gupta and Mr. Janesh Gupta, Advocates, learned counsels for the respondent and have also gone through the records carefully. 10. Since all the substantial questions of law No. 1 to 4 are interrelated and inter-connected, therefore, I proceed to dispose of the same through common reasoning. 11. At the outset, I may point out that learned trial Court by way of a cryptic judgment held that the ground of fraud, misrepresentation and undue influence has neither been pleaded nor proved nor has the plaintiff in her statement deposed regarding even a single instance of these grounds. While on the other hand, the learned lower Appellate Court has taken pains to discuss in detail the entire pleadings as also the entire evidence led by the parties to the lis and it is only thereafter that he partly allowed and partly dismissed the appeal by holding relinquishment deed Ex.DX dated 22.12.1993 to be an unconscionable document. 12. Even before this Court, it has been argued by the learned counsel for the appellants that there is no pleadings regarding undue influence or coercion and the plaintiff has failed to set-forth the facts in detail mentioning therein such essential particulars which would constitute either fraud or undue influence, coercion or like that, at the best the same can only be termed as general allegation which in any manner meet the requirement of law as contemplated under Order 6 Rule 4 CPC which reads as follows: “4. Particulars to be given where necessary.- In all cases in which the party pleadings relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.” 13. For this purpose, the learned counsel for the appellants has placed reliance on Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein the Hon’ble Supreme Court has held as under: “10. For this purpose, the learned counsel for the appellants has placed reliance on Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein the Hon’ble Supreme Court has held as under: “10. 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. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270 : ( AIR 1963 SC 1279 ) above referred to. In that case it was observed (at p. 295 of SCR): (at p. 1288 of AIR): “A vague of general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.” “25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock one’s conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father.” The learned counsel for the appellants has further placed reliance on Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 Supreme Court, 163, wherein the Hon’ble Supreme Court has held as under: “While it is true that ‘undue influence’, ‘fraud’, ‘misrepresentation’ are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court.” He has also placed reliance on P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi Kantam AIR 1978, Madras, 361 wherein the Hon’ble Supreme Court has held as under: “11. The plea of undue influence as raised in the pleadings rests upon the following facts urged by the plaintiff. According to the plaintiff she came to understand that the defendants have taken undue advantage of the dominant position which they and the first daughter and the husbands of both the sisters occupied with reference to her and it was in that atmosphere she was compelled to execute the challenged sale deed. According to the plaintiff she came to understand that the defendants have taken undue advantage of the dominant position which they and the first daughter and the husbands of both the sisters occupied with reference to her and it was in that atmosphere she was compelled to execute the challenged sale deed. The second objection is that the consideration said to have been paid under the document is ridiculously low, the third contention is that the document is a sham one not intended to be acted upon. To further this contention, the plaintiff would allege that she was told that the mother was taking a loan and that she should attest the document and she believed her mother and signed the same. She would also add that the document on the fact of it is unconscionable and gives the first defendant unfair advantage. But the telling irreconcilable part of it is that in the alternative, the plaintiff accepts the document partially and she is prepared to redeem the properties without payment of the consideration mentioned therein, if the Court ultimately holds that the money was lent under the document. She claims that she is not liable to pay any amount for such redemption, since the first defendant was in possession and enjoyment of the properties till the date of suit. In a case where a litigant intends to overlook and bypass a registered document under which prima facie certain rights have become vested and under which third parties have acquired indefeasible rights, then the challenging party should be in a position to give such particulars about such undue influence which should form the basis of her complaint. The primary ground on which the plea of undue influence is founded is based on relationship. It is axiomatic that mere proof of relationship however near it may be, is not sufficient for a Court to assume that one relation was in a position to dominate the will of the other. Such bonds of kinship which are universally felt should not be mistaken as equivalent to saying that one kinsman could unduly influence the other in the circuit of such bondage. Even if any advice is given it may be influence but not undue influence. Such bonds of kinship which are universally felt should not be mistaken as equivalent to saying that one kinsman could unduly influence the other in the circuit of such bondage. Even if any advice is given it may be influence but not undue influence. The tie of relationship need not necessarily be used unwisely, injudiciously and unhelpfully so as to gain an unfair advantage by the relation who is advising the other relation. Particularly in a Hindu family a widowed mother, who would rather be fairly and affectionately inclined to an unmarried daughter would not make undue preferences in favour of a married one who has already been provided for and who was well set in life. The sentiment, the traditional features of a Hindu Home, the love and affection of a mother towards her natural and last child which is a always in one way unless there are very extraneous circumstances to assume otherwise should always prompt a Court to raise the reasonable presumption that any advice or influence which a parent brought to bear on his own child is not to gain an advantage for herself or to see that an unfair advantage is gained by another child of hers in preference to the challenging child. There is also one other important and salient feature which ought to be established on materials pleaded and acts established that the ‘bargain is tainted by undue influence’ and it is unconscionable that it could reasonably be said that the person to obtain unfair advantage for himself and so as to cause injury to the person sought relying upon his authority or aid. It is only after such particulars are made available and a reasonable proof thereof has been given, the onus probandi would shift on the so-called ‘person of domination’. Until then the burden is on the complainant to establish it is so.” The learned counsel for the appellants has also placed reliance on Savithramma v. H. Gurappa Reddy and others AIR 1996 Karnataka 99 wherein the Hon’ble Supreme Court has held as under: “In need to dispose of this aspect of the matter which I propose to do on a very clear cut consideration. The position that merged was that after the death of Kalappa Reddy, it was necessary that the legal heirs be brought on record. The position that merged was that after the death of Kalappa Reddy, it was necessary that the legal heirs be brought on record. The wife and the sons were infact impleaded and it is true that the remaining family members were not impleaded, particularly the four married daughters. The position would have been entirely different if the remaining family members were impleaded and only the present application was not in which case there might have been some basis for the allegations that have been made. Furthermore, what needs to be stated is that the matter came to be negotiated and it is impossible for any court to attribute dishonesty, malafides or any other such imputations to the parties in the absence of very strong and cogent material. To my mind, had the matter been compromised in a manner whereby only the land belonging to the present applicant was conceded to Gurappa Reddy, there might have been some warrant for the allegations. On an examination of the facts, I find that an even larger portion of the land belonging to the other heir has been made a part of the compromise. This clearly indicates that there was neither any hostility, illwill nor any form of involvement but that the negotiation for whatever it was worth, was carried on and that it was according to the best judgment of the parties who were before the Court at that time that the compromise was carved out and recorded. It is a well settled law that even within the province of civil litigation when an allegation of misrepresentation or fraud is made, that the level of proof required is extremely high and is rated on par with a criminal trial. On the basis of the material before the Court here, it would therefore be impossible to uphold the charge that the compromise decree stood vitiated on grounds of either misrepresentation or fraud. On the basis of the material before the Court here, it would therefore be impossible to uphold the charge that the compromise decree stood vitiated on grounds of either misrepresentation or fraud. To my mind, therefore that contention cannot be upheld.” Lastly the learned counsel for the appellants has placed reliance on the judgment passed by this Court in Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278 wherein it has been held as under: “…………The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was as a result of undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud……” 14. The learned counsel for the appellants has further contended that no adverse inference could have been drawn by the learned lower Appellate Court for the non-appearance of the defendant Ratti Ram in the witness box, who admittedly did not appear. For this purpose, he relied upon the judgment of this Court in Bhim Singh (since deceased) through his LRs v. Krishan Dutt Latest HLJ 2012 (HP) 202, wherein it has been held as under: “11. It is also urged by Mr. Verma that plaintiff failed to step into the witness box and examine himself as a witness, instead he asked his son to appear as his Attorney. As such, best evidence in support of the defendant’s case has been concealed, suppressed and withheld by the plaintiff. This is rather a strange plea. The contention needs to be rejected. Plaintiff, as has come in the statement of PW-1, was infirm. As such, best evidence in support of the defendant’s case has been concealed, suppressed and withheld by the plaintiff. This is rather a strange plea. The contention needs to be rejected. Plaintiff, as has come in the statement of PW-1, was infirm. Also he was old in age. Importantly, plaintiff never admitted defendant’s plea of tenancy. Hence, he was under no obligation to step into the witness box to depose in favour of the defendant. In any event, it was open for the defendant to have called him as his witness or taken appropriate steps for his personal examination.” 15. Mr. K.D.Sood, learned counsel for the appellants placing reliance on the aforesaid observations has further stressed that even in this case it had been proved on record in the statement of DW-2 Ramesh Kumar that defendant was not keeping well and therefore, had every reason not to appear as a witness. Taking these grounds, the appellants have prayed for reversing the judgment passed by the learned lower Appellate Court and have prayed for acceptance of the appeal. 16. Mr. Bhupender Gupta, learned counsel for the respondent on the other hand has contended that there is no reason forthcoming as to why the defendant had purchased the stamp papers in the name of plaintiff Surmi Devi through defendant Ratti Ram on 19.11.1993 when admittedly relinquishment deed Ex.DX was allegedly written on 22.12.1993 and registered on 23.12.1993, affidavit Ex. DY was allegedly written on 22.12.1993 and attested on 23.12.1993, while the Will Ex.DZ was written on 22.12.1993 and attested on 28.12.1993. These circumstances in themselves clearly prove the misrepresentation and fraud played by the defendants. 17. In view of what has come on record by way of pleadings as also by way of evidence, I find no reason as to why the stamp papers were purchased anticipation by the defendant that too in the name of plaintiff Surmi Devi on 19.11.1993, when admittedly, these documents were allegedly executed at a later date. Similarly, there is no explanation as to why the date in these documents was filled in later on because in this case these documents had been executed on the date appearing in the said documents, in hand, there was no reason why the type written date could not have been mentioned in these documents. 18. Similarly, there is no explanation as to why the date in these documents was filled in later on because in this case these documents had been executed on the date appearing in the said documents, in hand, there was no reason why the type written date could not have been mentioned in these documents. 18. In so far as the plea of fraud, misrepresentation and undue influence are concerned, learned counsel for the respondent has taken me to para 4 of the plaint, which reads as thus: “That the defendant by fraud, misrepresentation and undue influence got a document termed as “relinquishment deed” executed and got her thumb impression on the said document telling her that the defendant is getting his share separated from her and the said document is required for the said purpose. The plaintiff later came to know from the defendant that her entire property i.e. suit land had been got relinquished in his favour and she was no longer owner of the said suit land. After getting the said document falsely prepared and fraudulently executed, the defendant kept the plaintiff in the house of his sister at Damkari upto 31.1.1994 and on 1.2.1994 she was thrown out of the house and she had to come to the house of Shri Khem Singh in village Changar who is now maintaining her as before. The defendant has played a fraud in getting the thumb impression on the above referred document termed as “relinquishment deed” and had gobbled up the entire property of the plaintiff and had thrown her at the mercy of Khem Singh. The said document is not only a result of fraud, misrepresentation but is also a unconscionable document as the plaintiff who is a old childless widow had been deprived of her property by a unscrupulous person who had never maintained her or rendered any service to her except for about 6 weeks in which he got the above referred document prepared under the circumstances referred to above. The plaintiff came to know about the real nature of the document on 10.2.94 when he asked Shri Khem Singh to apply for the certified copy of the document which he did on behalf of the plaintiff and which was received on 15.2.94. The plaintiff came to know about the real nature of the document on 10.2.94 when he asked Shri Khem Singh to apply for the certified copy of the document which he did on behalf of the plaintiff and which was received on 15.2.94. So the cause of action arose first on 23.12.93 when a fraudulent, illegal and void document was got prepared and registered and subsequently on 15.2.94 when the copy of the same was got through Shri Khem Singh and continues on each day thereafter.” 19. To the allegations set-out in para-4 of the plaint, the defendant has made the following averments in the written statement: “That the contents of para 4 of the plaint are wrong and are denied emphatically as alleged. The plea of fraud, misrepresentation and undue influence although supported by better particulars. The plaintiff Surmi Devi executed the relinquishment deed at her sweet will and knowingly fully well its implications and the papers were purchased by herself and were got it prepared at her instance and admitting to be the true the same was signed and admitted to be the same to be true and correct before the Registering authority and also admitted the possession qua her and part from this plaintiff also gave away the affidavit for attestation of mutation in her absence. The plaintiff has neither lodged any report nor any notice was given by the plaintiff after the execution of the relinquishment deed in question and the plaintiff was instigated by Shri Khem Singh due to the reasons the plaintiff was forcibly taken away by him on 1.2.94 and compelled to living in his house and to bring the present suit just to harass and humiliate the defendants and also to grab the property which she has validly relinquished the property in his favour. The document has lawfully been executed and the present suit is at the instance of Shri Khem Singh. Rest of the contents of this para are wrong and are denied emphatically.” Therefore, from perusal of the pleadings in the suit more particularly para-4 thereof clearly shows that there are sufficient and proper pleadings of fraud, misrepresentation and undue influence which satisfy the requirement of Order 6 Rule 4 CPC. 20. Rest of the contents of this para are wrong and are denied emphatically.” Therefore, from perusal of the pleadings in the suit more particularly para-4 thereof clearly shows that there are sufficient and proper pleadings of fraud, misrepresentation and undue influence which satisfy the requirement of Order 6 Rule 4 CPC. 20. Above all, what bothers this Court is the fact that in case Smt. Surmi Devi had executed the document i.e. relinquishment deed Ex.DX, affidavit Ex.DY and the Will Ex.DZ, out of her free will and volition, then why during her life time she assailed the same. There is no reason forthcoming from the side of the defendants for the same. In similar facts and circumstances, this Court has dealt with the plea of fraud and misrepresentation coupled with the executor of the document filing a case during her life time seeking therein the quashing of the relinquishment deed/release deed like in the present case. This Court in Murat Ram vs. Bhadar Singh in RSA No. 266 of 2002, held as follows: “18. The fraud or misrepresentation can further be gathered from the fact that Smt. Baldassi during her life time was in possession of the suit land. In case she had relinquished or released the same in favour of the defendant, then she would not have possessed the same. DW-3 Mohar Singh has clearly admitted that Smt. Baldassi during her life time in fact possessed the suit land. Another factor which outweighs the other evidence on record is the fact that had Smt. Baldassi of her own executed the relinquishment or release deed, then she probably would not have assailed the same. But in this case the fact remains that Smt. Baldassi herself during her life time challenged the document to be void. She has categorically stated that the existence of this document came to her notice only after she had approached the Patwari for partition and it is this time she detected the fraud and came to know that she had been duped.” 20. Confronted with this situation, the learned counsel for the appellant would contend that since Ex.DW-2/A was registered document, therefore, presumption of truth is attached to the certificate appended by the Registrar under Section 60 (2) of the Registration Act. For this purpose, he relied upon a decision of this Court in Kirpa Ram and others vs. Smt. Maina, 2002 (2) Shim. For this purpose, he relied upon a decision of this Court in Kirpa Ram and others vs. Smt. Maina, 2002 (2) Shim. L. C. 213, He further submitted that the decision of this Court follows the well established principle of law settled in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81 and Kanwarani Madna Vati and another v. Raghunath Singh and others, AIR 1976 HP 41 . 21. The proposition of law if dissociated with the present facts is taken into consideration, then there can be no quarrel to the arguments of the learned counsel for the appellant. However, a principle of law has to be applied in a particular fact situation and not for a theoretical purpose. The entire reading of the pleadings and the evidence clearly indicate that the original plaintiff has been duped. Smt. Baldassi though cannot be treated as ‘Pardanashi’ lady but still nonetheless it has to be established on record that she was whereabouts of true nature of transaction she was entering into. The High Court of Calcutta in Kartick Prasad Gorai and others vs. Neami Prasad Gorai and others AIR 1998 Calcutta 278 held: “21. In our opinion, although the protection given to a ‘Pardanashi’ woman as regards execution of a deed is not available to an illiterate man who has sufficient experience of dealing with property, we are of the view that in case of a deed executed by such a person, the fact that the contents of the deed were read over and explained to the executant must be proved by the person who wants to take advantage of such deeds. In this case in view of contradictory statement made by the alleged witnesses of the deeds as regards execution and explanation of the contents, the finding of the learned trial Court cannot be said to be wrong.” The reasoning given by Calcutta High Court clearly applies to the facts of the present case as it is established on record that Smt. Baldassi was a total illiterate and could only understand the local language of Kullu and there was no reason for her to have executed the relinquishment deed and above all challenged the same during her life time. 22. To counter the submissions of the learned counsel for the appellant, learned senior counsel Mr. 22. To counter the submissions of the learned counsel for the appellant, learned senior counsel Mr. Bhupinder Gupta, has rightly relied upon the judgment passed by this Court in Smt. Kala Wati vs. Smt. Vidya Devi and others 2009 (3) Shim. L.C. 306 wherein the decision rendered by this Court in Kirpa Ram’s (supra) was also taken into consideration and it was held as follows: “15. Learned counsel appearing for the respondent submits that the document being registered, the presumption of truth is attached to tine certificate appended by the Registrar under Section 62 of the Registration Act. He relies upon a decision of this Court in Shri Kirpa Ram and others vs. Smt. Maina, 2002 (2) Shim. L.C.213. He submits that this Court this decision follows the well established principle of law settled in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81 and Kanwarani Madna Vati and another v. Raghunath Singh and others, AIR 1976 HP 41 . 16. Learned counsel has also supported the judgment of the Courts below, in particular that of the learned trial Court, by urging that merely because the parties to the lis are related that would not perse attract the principle that the defendant was in fiduciary relationship which would have influenced the plaintiff. Learned counsel has also relied upon a decision of the Madras High Court in P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi Kantam, AIR 1978 Madras 361 to the effect that mere bond of kinship does not establish undue influence. 17. As a general proposition of law the points urged by learned counsel appearing for the respondent are taken as an established principle of law. However, a principle of law is applied in a particular fact situation and not as a theoretical purpose. In the sequential narration of facts supported by the evidence of the plaintiff, PW-1 Kamal Kishore and PW-2 Karam Chand, the so called attesting witnesses, the narration is clear and natural. The plaintiff admits the putting of a thumb impression on the document but pleads that this was done out of love and affection to help the defendant to obtain loan for the purposes of house construction where she was to give her no objection and consent to such construction so that the defendant could raise the loan. The plaintiff admits the putting of a thumb impression on the document but pleads that this was done out of love and affection to help the defendant to obtain loan for the purposes of house construction where she was to give her no objection and consent to such construction so that the defendant could raise the loan. The plaintiff has nowhere stated that she had any idea of relinquishing her share in the property. Registration of the document is of no avail to the plaintiff as the attesting witnesses themselves have stated that they were not aware about the contents of the document. They were not accompanying the defendant. How and under what circumstances the trial Court says that they being the attesting witnesses are now deposing in favour of the plaintiff and as such their testimony is not believable is a clear breach of the rule applicable for appreciation of evidence. Rejection of the evidence of these two witnesses on the ground of perversity is writ large in this case. What is the quality of deposition has not been considered. Both the Courts below have swept the principles applicable for the appreciation of evidence under the carpet without realizing its implications. Without appreciating the evidence it would but be stating the obvious that the perversity of findings on the evidence on record is writ large in this case. True that the plaintiff may not be ‘pardanashi’ lady in the traditional sense when this doctrine was used for protection of such ladies in 19th and 20th century in India, but little seems to have changed with the majority of the women still labouring under the disability of illiteracy and poverty and confined. The concept of ‘pardanasi’ women have withered down. But whether illiterate women are now in a position to understand the true nature of the transaction they are entering into or are overwhelmed by filial affection into following their kin blindly is something which requires a deeper thought. 18. It is true and undisputed that the appellant is an illiterate lady. Even if she is not treated to be ‘pardanashin’ lady, what had to be established on the record was that she was aware about the true nature of the transaction she was entering into. The High Court of Calcutta in Kartick Prasad Gorai and others vs. Neami Prasad Gorai and others, AIR 1998 Calcutta 278 held:- “21. Even if she is not treated to be ‘pardanashin’ lady, what had to be established on the record was that she was aware about the true nature of the transaction she was entering into. The High Court of Calcutta in Kartick Prasad Gorai and others vs. Neami Prasad Gorai and others, AIR 1998 Calcutta 278 held:- “21. In our opinion, although the protection given to a ‘Pardanashi’ woman as regards execution of a deed is not available to an illiterate man who has sufficient experience of dealing with property, we are of the view that in case of a deed executed by such a person, the fact that the contents of the deed were read over and explained to the executant must be proved by the person who wants to take advantage of such deeds. In this case in view of contradictory statement made by the alleged witnesses of the deeds as regards execution and explanation of the contents, the finding of the learned trial Court cannot be said to be wrong.” 23. The learned counsel further placed reliance upon a judgment of this Court in Bhoop Ram vs. Dharam Das Latest HLJ 2009 (HP) 560 where Kirpa Ram’s case was again considered by this Court and it was held: “12. Reliance is placed on decision of this Court in Shri Kripa Ram and Others vs. Smt.Maina, 2002(2) Shim.L.C. 213 . In that case, this Court relying upon the decision of the Privy Council in Sennimalai Goundan and another vs. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60(2) of the Registration Act read with Section 115 of the Evidence Act held that where a person admits execution of an instrument before the Registrar after the document has been explained to him, he cannot subsequently plead that he was ignorant to the nature of the transaction. The decision relied upon also follows the judgment of this Court in Kanwarani Madna Vati and another vs. Raghunath Singh and others, AIR 1976 HP 41 . Prima facie, this argument seems attractive but on consideration of the facts on record, this submission cannot be accepted. The evidence on record and proved facts are consistent only with one conclusion and that is that the plaintiff has been duped. Prima facie, this argument seems attractive but on consideration of the facts on record, this submission cannot be accepted. The evidence on record and proved facts are consistent only with one conclusion and that is that the plaintiff has been duped. The cumulative effect of the established facts, namely, illiteracy of the plaintiff, non-payment of the consideration money and material contradictions in the statements of the witnesses of the defendant are all sufficient to rebut the presumption so invoked by the defendant. No sale consideration was either paid by the defendant or received by him before the Registrar. In the decision relied upon by the learned counsel appearing for the appellant, the Court had held that the endorsement was clear not only regarding the presentation of the deed before the Registrar but the fact that payment of the consideration had been admitted and that the document had infact been read over and explained to the executant. Moreover, the presumption under Section 60 ibid is not irrebutable. Old age, illiteracy and backwardness, were facts which placed a special cloak of protection around the plaintiff. There is nothing on the record to suggest or show that the plaintiff had infact understood the nature of the transaction or that he was ad-idem with what he was transferring. The conduct of the plaintiff revoking the transaction vide ExPW-3/A within a period of five days and in the absence of evidence that during this time he had been prevailed upon by any other person for extraneous consideration to revoke the transaction, the findings of both the Courts below that in-fact no consideration had passed, were all factors which would render the presumption attached to Ex.DA as having been negatived. All these facts were consistent with only one conclusion that is, that the mind of the plaintiff was not ad-idem with the purported transaction.” “24. Therefore, after taking into consideration the evidence led by the parties, I find that the plaintiff /respondent has been successfully in rebutting the presumption as attached to the document Ex.DW-2/A in terms of the provisions of Section 60 (2) of the Registration Act.” “26. What is fraud has been dealt with in detail by this Court in Smt. Kala Wati’s case (supra), wherein it has been held: “13. What is fraud has been dealt with in detail by this Court in Smt. Kala Wati’s case (supra), wherein it has been held: “13. Section 17 of the Indian Contract Act, 1872, (hereinafter referred to as the ‘Act’) deals with fraud defining it to mean inter alia the suggestion of a fact which is not true by a person who does not believe it to be true, active concealment of a fact by a person having knowledge or belief of the fact.” In Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Malty and others, AIR 2003, SC 4251, the Supreme Court while considering the provisions of Section 16 supra held:- “13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court. 14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's principles of Equity, 2nd Ed. , p. 229. thus: "when the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gifts was the result of a free exercise of the donor's will. " 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian contract Act, 1872 (in short 'contract Act'). 16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. " 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian contract Act, 1872 (in short 'contract Act'). 16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi Mukhtar ahmad and Anr. (AIR 1925 P. C. 204) it was observed as follows: "it is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not". 17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and Ors. ( AIR 1963 SC 1203 ) are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons”. 14. To similar effect is the judgment of the Supreme Court in State of Andhra Pradesh and another vs. T. Suryachandra Rao, AIR 2005 SC 3110 . The Court held:- “8. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration and Indian Bank v. Satyam Fibres (India) Pvt. Ltd.). 9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. (See Dr. Vimla v. Delhi Administration and Indian Bank v. Satyam Fibres (India) Pvt. Ltd.). 9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S. P. Chengalvaraya Naidu v. Jagannath). 10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata. (See Ram Chandra Singh v. Savitri Devi and Ors.)”. 11. … … … … … … … In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 BC)"fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home deptt. , that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "if a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "in a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v.M/s.Shaw Brothers, 1992(1) SCC 534 ).” 12. … … … … … … … … … … … … … 13. "in a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v.M/s.Shaw Brothers, 1992(1) SCC 534 ).” 12. … … … … … … … … … … … … … 13. This aspect of the matter has been considered recently by this Court in Roshan deen v. Preeti Lal Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [ 2004(3) SCC 1 ]. 14. Suppression of a material document would also amount to a fraud on the court, (see Gowrishankar v. Joshi Amba shankar Family Trust and S. P. Chengalvaraya Naidu's case (supra). 15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti yadav's case (supra)”. The ratio of the aforesaid judgment squarely applies to the facts of the present case. 21. It has already come on record that the defendant has not chosen to step into the witness box and only his son has appeared as DW-2. Though the explanation given by the defendant is that he is age infirm and, therefore, not in a position to enter the witness box. However, the record of the case proves otherwise. The General Power of Attorney has been executed by the defendant in favour of his son on 4.5.1996 while the statement of his son Ramesh Kumar, DW-2 has been recorded on 7.7.1997 which is more than one year from the date of execution of the General Power of Attorney. Moreover, there is nothing on the record which may suggest that the defendant Ratti Ram was either aged infirm or not in a position to appear before the Court because from the records, it is absolutely clear that defendant Ratti Ram was aged about 57 years when the statement of the defendant witnesses was being recorded. Moreover, there is nothing on record which may suggest even remotely that the defendant was suffering from any disease much less any serious disease. Moreover, there is nothing on record which may suggest even remotely that the defendant was suffering from any disease much less any serious disease. Even otherwise there is nothing which could have prevented the defendant from being examined on commission. Therefore, taking into consideration the totality of the facts and circumstances, it can be conveniently held that the defendant deliberately avoided to appear in the witness box knowing fully well that the case set up by him was not correct. 22. It is settled law that where a party to the suit does not appear in the witness box and state his own case on oath and further does not offer himself for cross-examination by other side, a presumption under Section 114(g) would arise that the case set up by him was not correct as held by the Hon’ble Supreme Court in Ishwar Bhai C.Patel alias Bachu Bhai Patel versus Harihar Behera and another (1999) 3 SCC 457 wherein it has been held as under:- “17. Admittedly respondent No. 1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No. 2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No. 2. It has been given out in the statement of respondent No. 2 that when the appellant had approached him for a loan of Rs. 7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No. 1 and it was on his suggestion that the respondent No. 2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No. 2 that it was at his instance that respondent No. 2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No. 1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act, 1872. 18. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No. 1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act, 1872. 18. As early as in 1927, the Privy Council in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under :- "Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness. This is thought to be clever, but it is a bad and degradingpractice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1910) ILR 32 All 104), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy." 19. They further observed as under :- "But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case." 20. Their Lordships also took note of the High Court "It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement. 21. They observed :- "Their Lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination." 22. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination." 22. This decision has since been relied upon practically by all the High Courts. The Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1, observed as under :-"It is significant that while the plaintiffs put the defendant in the witness-box they themselves had not the courage to go into the witness-box. Plaintiffs were the best persons to give evidence as to the "interest" possessed by them in the institution and their failure to go into the witness-box must in the circumstances go strongly against them." 23. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97, which observed as under :- "It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his nonappearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case." 24. The Lahore High Court in two other cases in 1934,namely, Bishan Das v. Gurbakhsh Singh, AIR 1934 Lahore 63 (2) and Puran Das Chela v. Kartar Singh, AIR 1934 Lahore 398 took the same view. 25. A Division Bench of the Patna High Court in Devji Shivji v. Karsandas Ramji, AIR 1954 Patna 280, relying upon the decision of the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh (AIR 1927 PC 230) (supra) and the Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 MP 225 have also taken the same view. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha v. Sm. Tulsibala Dassi, AIR 1958 Cal 713 :-"The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny." 26. Tulsibala Dassi, AIR 1958 Cal 713 :-"The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny." 26. The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 All 29 , held that :- "the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the Court would not imagine an explanation which a party himself has not chosen to give." 27. It was further observed that :- "If such a party abstains from entering the witness box it must give rise to an inference adverse against him. 28. A Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass v. Bhishan Chand, AIR 1974 P & H 7, drew a presumption under Section 114 of the Evidence Act that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party. 29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No. 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No. 1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No. 1 in its entirety and passing a decree against the appellant also.” 23. Similar observations have been reiterated by the Hon’ble Supreme Court in Vidhyadhar versus Manikrao and another (1999) 3 SCC 573 which reads as follows:- “17. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No. 1 in its entirety and passing a decree against the appellant also.” 23. Similar observations have been reiterated by the Hon’ble Supreme Court in Vidhyadhar versus Manikrao and another (1999) 3 SCC 573 which reads as follows:- “17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksh Singh v. Gurdial Singh AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh AIR 1930 Lah 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat AIR 1970 MP 225 also followed the Privy Council decision in Sardar Gurbaksh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath AIR 1971 All 29 held that if a party abstains from entering the witness box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand AIR 1974 P&H 7 drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness box.” 24. The findings recorded by the learned lower Appellate Court in view of detailed discussion above, cannot be termed to be perverse being based on misreading of oral and documentary evidence as alleged. The learned lower Appellate Court has discussed correctly and appreciated the pleading as also the oral and documentary evidence available on record in its right perspective. It also cannot be held that the pleadings of fraud, misrepresentation and undue influence do not meet the requirement of Order 6 Rule 4 CPC. Thus, all the substantial questions of law are answered accordingly. 25. It also cannot be held that the pleadings of fraud, misrepresentation and undue influence do not meet the requirement of Order 6 Rule 4 CPC. Thus, all the substantial questions of law are answered accordingly. 25. In view of aforesaid detailed discussion, I find no infirmity with the judgment and decree passed by the learned lower Appellate Court and consequently the present appeal is dismissed, leaving the parties to bear their own costs.