JUDGMENT : Sureshwar Thakur, J. The instant Regular Second Appeal stands directed against the impugned judgement and decree recorded by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in Civil Appeal No. 147-J/05/03, whereby he in affirmation to the verdict recorded by the learned trial Court dismissed the suit of the plaintiff wherein he had sought a declaration qua gift deed comprised in Ex.DW2/A being quashed and set aside. The plaintiff/appellant herein stands aggrieved by the concurrently recorded renditions of both the learned Courts below wherefrom he has instituted the instant appeal herebefore. 2. The brief facts leading to the lis inter se the parties were that the plaintiff sought declaration that he is joint owner to the extent of 435/924 shares in the suit land since the suit land was earlier owned by the mother of the parties Smt. Vidya Devi wife of late Dharam Vir. It had been averred that a Will was executed by Vidya Devi in favour of the plaintiff and defendant No.1 in full disposing mind on 9.4.1991 and as per that Will, the land to the extent of 0-02-85 hectares was given to defendant No.1 and 0-03-84 hectares was given to the plaintiff. The deceased had also executed a Will in respect of other land vide which the land had been given to the proforma defendants NO.2 and 3. The plaintiff was earlier residing at Patiala and thereafter shifted to Shimla as he was in government service. The defendant taking advantage of the absence of the plaintiff by playing fraud upon Vidya Devi got a false and fictitious gift deed executed. The suit land in the hands of Vidya Devi was ancestral qua the plaintiff and defendant No.1 and proforma defendants who are governed by custom in the matter of alienation being agriculturists. It had also been averred that the land being ancestral property was to devolve upon the plaintiff and defendants but by way of Will executed by Vidya Devi the reversionary rights of the plaintiff got effected and he got deprived of his share in the suit land. It had also been averred that the gift deed is not valid and the plaintiff is not bound by the gift deed. It had also been averred that the gift deed is not valid and the plaintiff is not bound by the gift deed. The plaintiff had further averred that Vidya Devi had also constructed a house over the suit land about two years back and there was another old house existing on the suit land constructed by the forefathers of the parties. The plaintiff and the defendants have got their shares in both the house since the parties are in joint possession of both the houses. The defendant NO.1 in connivance with the revenue staff got mutation sanctioned on the basis of the alleged gift deed in his favour without notice to any of the interested parties or to deceased Vidya Devi. The defendant No.1 was asked time and again that he should not claim anything as per the alleged gift deed but in vain, hence the instant suit. 3. Defendant No.1 contested the suit and taken preliminary objections inter alia maintainability, locus standi, estoppel, cause of action. It had been averred that the plaintiff was regularly visiting to his house. It had also been averred that Vidya Devi was not a simple lady. She executed a valid gift deed in faovur of defendant No.1 out of her free will and undue influence. The gift was registered with the Sub Registrar, Jawali. Thus there was no question of fraud. Defendant NO.1 has become owner of 558 shares out of 924 shares out of which 285 shares were due on account of the gift deed. The houses constructed by defendant No.1 by raising loan from the financial institution. Thereby the plaintiff and proforma defendants have got no share over that house. The plaintiff is owner to the extent of 366 shares out of 924 shares. It had been averred that the parties are not governed by custom in the matters of alienation. Vidya Devi had every right to alienate suit land by way of gift being owner-in-possession of the suit land. The deed is valid and a legal document. Thereby the plaintiff is not entitled to any relief. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is joint owner to the extent of 435/924 share i.e. 0-04-57 HM, out of the suit property, as alleged? OPP 2. Thereby the plaintiff is not entitled to any relief. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is joint owner to the extent of 435/924 share i.e. 0-04-57 HM, out of the suit property, as alleged? OPP 2. Whether the gift deed dated 23.4.1991 executed by Vidya Devi in favour of defendant No.1, is result of fraud , as alleged? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD 4. Whether the plaintiff has no locus stnadi to file the present suit, as alleged? OPD 5. Whether the plaintiff is estopped to file the present suit, as alleged? OPD. 6. Whether the plaintiff has no enforceable cause of action, as alleged? OPD. 6-A. Whether the property is ancestral and parties are governed by customs in the matter of alienation of such property, as alleged? OPP 7. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, it dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the plaintiff/appellant herein before the learned first Appellate Court, the latter Court while dismissing the defendant's appeal, affirmed the findings recorded by the learned trial Court. 6. Now the plaintiff/appellant herein has instituted the instant Regular Second Appeal before this Court assailing therein the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 24.08.2007, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree of the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- a) Whether misreading of oral as well as documentary evidence which goes to the root of the matter has vitiated the findings of the ld. Courts below. b) Whether the Ld. Courts below have arrived at wrong conclusion by the misreading of documents Ex.P1, Ex.DW2/A and ExPW3/F? c) Whether the learned Courts below were right in holding that the documents Ex.DW2/A, the gift deed was not in violation of Section 122 of the |Transfer of Property Act? d) Whether the learned Court below is wrong in holding that the suit property is not an ancestral property and could have been alienated in the matter it has been done so? d) Whether the learned Court below is wrong in holding that the suit property is not an ancestral property and could have been alienated in the matter it has been done so? e) Whether the learned Court below erred in holding that the property is not ancestral and is not governed by local custom. f) Whether the learned Court below is right in holding that the gift deed Ex.DW2/A dated 23.4.91 is not a result of fraud? Substantial questions of Law No.1 to 6: 7. The plaintiff/appellant and the contesting defendant/respondent are the off springs of deceased Vidya Devi. Vidya Devi, the predecessor-in-interest of the contestants herebefore had prior to the execution qua her property of Ex.DW2/A executed a testamentary disposition whereby she devised her estate vis-a-vis the parties at contest in the manner enshrined therein. The testamentary disposition of Vidya Devi, the predecessor-in-interest of the contesting parties hereat stands comprised in Ex.P-1. It stood executed on 9.4.1991. It also stood registered by the Sub Registrar concerned. It stood scribed by one Tilak Raj, Advocate and marginal witnesses thereto are Sadhu Ram and Shiv Singh. In quick succession thereto gift deed comprised in Ex.DW2/A stood executed by the predecessor-in-interest of the contesting parties hereat vis-a-vis defendant No.1/respondent No.1 herein. The factum of valid and due execution of Will comprised in Ex.P-1 has remained uncontroverted. However, an acerbic contest has erupted qua the valid and due execution of gift deed comprised in Ex.DW2/A. With execution of gift deed by the predecessor-in-interest of the parties at contest occurring in a short span vis-avis execution of a testamentary disposition comprised in Ex.P-1 by her, obviously the factum aforesaid stands highlighted by the learned counsel appearing for the appellant/plaintiff to constitute a suspicious circumstance impinging upon its volitional execution by the donor vis-avis the contesting defendant No.1. The validity of gift deed comprised in Ex.DW2/A stands pronounced by the testimony of its scribe also by the witnesses thereto. The validity of gift deed comprised in Ex.DW2/A stands pronounced by the testimony of its scribe also by the witnesses thereto. Apart therefrom, the factum of gift deed embodied in Ex.DW2/A standing presented for registration by the predecessor-in-interest of the contesting parties hereat before the registering authority concerned whereupon it stood accepted for registration also with occurrence of an endorsement qua its contents standing readover and explained to the donor, does strip the vigour of the contention of the learned counsel for the plaintiff/appellant of the donor since deceased standing beguiled by the donee to execute it in his favour. Contrarily, a tentative inference is erectable of it constituting a volitional disposition of her estate vis-a-vis the contesting defendant/respondent herein. 8. Be that as it may, even if, the recitals embodied in Ex.DW2/A do unveil the factum of its execution by the donor being bereft of any consideration passing from the donee to the donor whereupon it dons the mantle of a validly executed instrument of gift yet the order of mutation comprised in Ex.PW3/F attested by the revenue officer concerned on its presentation before him by the donor, who thereat stood accompanied by Shri Tilak Raj, Advocate, brings to the fore the factum of the donor on therebefore recording her appearance acquiescing tot he factum of hers receiving a sum of Rs.5000/- in lieu of her transferring possession of the corpus of the property enunciated in Ex.DW2/A vis-a-vis contesting defendant No.1/respondent No.1. Both the learned Courts below had overlooked the occurrence of the aforesaid recitals in the order of the mutation recorded by the revenue officer on presentation of Ex.DW2/A before him, whereat Shri Tilak Raj, Advocate, identified the donor, who therebefore obviously had recorded her appearance on the score of it being unreadable whereas only the recitals existing in Ex.DW2/A being readable for forming a construction of it constituting a gratuitous transfer of property alienated by the donor to the donee wherewithin with no recitals occurring in display of passing of consideration from the donee to the donor constituting a conclusive pointer of it being construable to be a gratuitous alienation of the suit property by the donor to the donee. The slighting, by both the Courts below of the germane recitals embodied in Ex.PW3/F wherewithin portrayals are held of monetary consideration passing from the donee to the donor in lieu of the donor passing possession of the suit property to the donee, on the score of theirs being unreadbale, has begotten gross mis-appraisal of there impact upon the trite factum of the gift deed comprised in Ex.DW2/A being construable to be a volitional gratuitous transfer of the property by the donor to the donee. True it is that the recitals in Ex.DW2/A omit to bespeak of passing of monetary consideration from the donee to the donor also true it is of Ex.DW2/A alone constituting the instrument whereupon title qua the suit property stood bestowed upon the donee besides true it is of the order recording attestation of mutation by the Revenue officer concerned on production of Ex.DW2/A before him by the donor not conferring title qua the suit property upon the donee yet the existence of recitals therein of the donor passing possession of the suit property to the donee in lieu of hers receiving a sum of Rs.5000/- cannot be amenable to a construction of its occurrence therein being mechanical nor the aforesaid germane recital occurring therein can stand segregated from the factum of execution of Ex.DW2/A nor it can be read in isolation therefrom, conspicuously, when in pursuance thereto possession of the suit property stood received by the donee from the donor. Since delivery of possession of the suit property from the donor to the donee is imperative for a transaction of gift being construable to stand completed, imperatively, hence with the transaction of gift standing completed with the revenue officer concerned recording an order qua possession of the suit property standing delivered to the donee by the donor in lieu of the latter receiving a sum of Rs.5000/- from the former holds a natural sequel of thereupon thereat the transaction of gift standing completed besides consummated. As a corollary, though the instrument of gift comprised in Ex.DW2/A omits to hold therewithin any recital of passing of consideration from the donee to the donor rather holds communication therewithin qua conveyance of the suit property by the donor to the donee being a volitional gratuitous disposition, the aforesaid recitals occurring in Ex.DW2/A are excludable for forming a construction whether Ex.DW2/A is a volitional gratuitous transfer of the suit property significantly when they are read in entwinement with the order of mutation recorded in Ex.PW3/F whereat, for reasons aforestated, the transaction of gift stood consummated. Contrarily when order of mutation embodied in Ex.PW3/F holds traits besides elements of passing of consideration from the donee to the donor in lieu of passing of possession from the latter to the former whereupon hence with a key characteristic feature of a gift for thereupon it standing concluded to be holding tenacity in law significantly qua its standing bereft of consideration passing from the donee to the donor obviously stands diminished. In aftermath, it is apt to conclude of Ex.DW2/A being unamenable to a construction of it being an instrument of gift within the ambit of its statutory definition held in the apposite provisions of the Transfer of Property Act. 9. Also both the learned Courts below had made short shrift of an apposite recital aforesaid occurring in Ex.PW3/F on score of no suggestion in tandem thereto standing put by the learned counsel for the plaintiff to the defendant's witnesses while holding them to crossexamination. The assigning of the aforesaid reason by both the learned Courts below for theirs omitting to rid off the impact of the apposite recitals embodied in Ex.PW3/F upon Ex.DW2/A for the latter being thereupon not being construable a to be validly executed instrument of gift, has emanated on theirs holding a view of the plaintiff standing enjoined to discharge the onus of proving the factum of Ex.DW2/A standing gripped with a vice of falsity or with a vice of its execution emanating from the contesting defendant/respondent practicing deception upon his predecessor-in-interest. The aforesaid view as taken by both the learned Courts below appears to germinate from theirs fallaciously holding a view of unlike a testamentary disposition, propounder whereof stands enjoined to dispel the suspicious circumstances surrounding its execution, the plaintiff while impeaching the validity of Ex.DW2/A standing obliged to prove the factum of its execution emanating from the contesting defendant No.1 practicing deception upon the donor, onus whereof standing undischarged by the plaintiff/appellant, theirs on anvil of the testimonies of the scribe of Ex.DW2/A besides on anchor of the testification of the witness thereto also on anchor of it being a registered instrument of gift whereupon a presumption of truth is fastened, presumption whereof remaining uneroded by adduction of convincing evidence, concluded of Ex.DW2/A being free from any stain of its execution ensuing from the contesting defendant practicing deception upon the donor. However, the aforesaid view as taken by the learned Courts below is in gross transgression of the mandate of the Hon'ble Apex Court propounded in Krishna Mohan Kul alias Nani Charan Kul and another versus Pratima Maity and others (2004)9 SCC 468, the relevant paragraph 14 whereof stand extracted hereinafter:- “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 stated in Ashburner's Principles of Equity, 2nd Edn. The proposition is very clearly stated in Ashburner's Principles of Equity, 2nd Edn. 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 gift was the result of a free exercise of the donor's will.”” (P....475) Wherewithin a mandate stands propounded of a grantee or a donee concerting to maintain a contract or a gift each standing obliged to prove qua his in obtaining it not exerting any influence upon the granter or the donor significantly when the donee holds a fiduciary relationship with the donor also when the donor at the time contemporaneous to its execution was under the care of the donee, whereupon a presumption is erectable of his exerting influence qua its execution vis-avis him upon the donor, presumption whereof is enjoined to be dispelled by the donee. The essential nuance of the mandate of the Hon'ble Apex Court besets the donee with an onerous obligation to satisfy the conscience of the Court qua execution of gift deed qua him by the donor being free from his dominating the will of the donor. The concomitant effect of the rendition of the Hon'ble Apex Court is of alike a testamentary disposition whereupon its propunders standing enjoined to by cogent evidence explicate the suspicious circumstance (s) surrounding its execution for theirs thereupon satisfying the judicial conscience of the Court qua its execution being free from any suspicious circumstance (s), a donee also likewise standing enjoined to explicate the suspicious circumstance (s) surrounding its execution. Now herebefore, it is imperative to under score qua whether the donee had the opportunity to dominate the will of the donor, opportunity whereof would arise on proof emanating of his staying in her company at the stage contemporaneous to its execution. Only on the aforesaid upsurgings emanating herebefore would this Court be inclined to enjoin the donee to prove the factum of its execution being free from his dominating her will besides this Court would stand coaxed to make it incumbent upon the donee to dispel suspicious circumstance (s) surrounding its execution. Only on the aforesaid upsurgings emanating herebefore would this Court be inclined to enjoin the donee to prove the factum of its execution being free from his dominating her will besides this Court would stand coaxed to make it incumbent upon the donee to dispel suspicious circumstance (s) surrounding its execution. In the endeavour aforesaid, an incisive perusal of the relevant record makes vivid upsurgings qua the donor staying in the company of the donee at the stage contemporaneous to the execution of Ex.DW2/A, whereupon he stood obliged, dehors his not assailing it also dehors onus standing not cast upon him to prove the factum of its execution emanating from his practicing deception upon the donor also dehors no suggestion standing put to the defendants witnesses by the learned counsel for the plaintiff hinged upon the order of mutation in succession to its execution standing attested by the revenue officer concerned holding recitals qua consideration passing from the donee to the donor in lieu of the former transferring possession of the suit land to him, whereupon for reasons aforestated the transaction of gift stood consummated also when it adversely impinged upon the trite factum of it thereupon lacking the statutorily trait of it being a volitional gratuitous transfer of the suit property by the donor to the donee, for it hence being construable to be a validly executed instrument of gift qua the suit property, to adduce evidence dispelling the factum of its execution not ensuing from his in any manner dominating the will of the donor. Reiteratedly, he was enjoined to make apposite pronouncements in dispelling the aura of suspicion surrounding the factum of purported volitional gratuitous disposition of the suit property under Ex.DW2/A by the donor to the donee. However, the aforesaid apposite bespeakings remain uncommunicated by the contesting defendant's witnesses. Since, the citation aforesaid of the Hon'ble Apex Court propagates a view qua akin to a propounder of a testamentary disposition standing enjoined to dispel the suspicious circumstance surrounding the valid and due execution of a testamentary disposition of a deceased testator, the donee likewise standing obliged to dispel the aforesaid suspicious circumstance surrounding the valid and due execution of Ex.DW2/A conspicuously when they are impinging upon the factum of its execution being not a volitional gratuitous transfer of the suit property by the donor to the donee. Since for removing the aura of suspicion ingraining the instrument of gift comprised in Ex.DW2/A, no apposite bespeakings occur in the testifications of the defendants witnesses, omissions whereof when read in coagulation with the apposite order of attestation of mutation comprised in Ex.PW3/F candidly convey qua the alienation of the suit land under Ex.DW2/A being a coloured transaction or a sham transaction also are loudly communicative under its guise the donor receiving consideration from the donee for handing over possession of the suit property to the donee whereupon the act of gift stood completed besides consummated, rendering Ex.DW2/A to be hence not construable to be a gift of the suit property. Furthermore, with a short gap occurring inter se the execution of a testamentary disposition by the predecessor-ininterest of the contesting parties hereat vis-a-vis the execution of gift deed comprised in Ex. DW2/A, is also a significant suspicious circumstance which too has remained inexplicated nor any reason stands purveyed by the donee qua the predominant prevailing reason besetting the donor to since the execution by her of a valid testamentary disposition of her estate, execute gift deed comprised in Ex.DW2/A besides with one Shri Tilak Raj scribing both the will and the gift deed besides with witnesses in both the aforesaid documents being common is connotative of the contesting defendant No.1 in tandem with the aforesaid contriving its execution. 10. Be that as it may, the commonality of scribe of both the aforestated instruments also given the commonality of the witnesses thereto begets an inference of theirs in tandem with the scribe of Ex.DW2/A besides with intra se complicity, theirs dominating the Will of the donor also theirs beguiling her to present it for registration before the Sub Registrar concerned. The shroud of the beguile practiced upon the donor by the donee in tandem with the aforesaid gets unveiled by revelations occurring in the order of mutation attested thereupon by the Revenue Officer concerned. The effect of the aforesaid conclusion is of validity imputed to a registered instrument of gift getting waned, more so, when the Sub Registrar concerned, who made an endorsement (s) therein has remained unexamined qua his in the presence of the donor making the relevant endorsement (s) thereon. The effect of the aforesaid conclusion is of validity imputed to a registered instrument of gift getting waned, more so, when the Sub Registrar concerned, who made an endorsement (s) therein has remained unexamined qua his in the presence of the donor making the relevant endorsement (s) thereon. In sequel, his non-examination begets an inference of the endorsement (s) occurring therein qua its contents standing readover and explained to the donor being construable to be mechanically besides perfunctorily made by the ministerial staff of his office, whereupon, no sanctity is imputable to them. Predominantly when the aforesaid inference, for reasons aforestated, stands enjoined to be explained besides to be dispelled by the donee, whereas, his omitting to examine the Sub Registrar concerned for enhancing the vigour of the relevant endorsement occurring therein bolsters a derivative of the entire act of registration of Ex.DW2/A by him, emanating on its scribe besides witnesses thereto acting in tandem with the donee bereft of the volition of the donor. 11. The concurrently recorded findings recorded by both the learned Court below qua the suit property being the self acquired property of deceased Vidya Devi are well founded especially when the predecessor-in-interest of the contesting parties received the suit land under a testamentary disposition executed in her favour by her father-in-law. Since, the suit land stood received by the predecessor-in-interest of the contesting parties under an testamentary disposition executed in her favour by her father-in-law, it obviously becomes her self acquired property, whereupon she held an indefeasible right to alienate it in the manner she chose. 12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are not based upon a proper and mature appreciation of the evidence on record. While rendering the apposite findings, the learned first Appellate Court as also the learned trial Court have excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the plaintiff/appellant and against the defendant No.1/respondent. 13. In view of above discussion, the present Regular Second Appeal is allowed and the judgements and decrees rendered by both learned Courts below are set aside. Accordingly, the substantial questions of law are answered in favour of the plaintiff/appellant and against the defendant No.1/respondent. 13. In view of above discussion, the present Regular Second Appeal is allowed and the judgements and decrees rendered by both learned Courts below are set aside. Consequently, the suit of the plaintiff is decreed and in sequel, gift deed of 23.4.1991 comprised in Ex.DW2/A is quashed and set aside and the plaintiff/appellant is held joint owner to the extent of 435/924 shares i.e. 0-04-57 HMS in the land bearing Khata NO.235, Khatauni No.719, Khasra Nos. 2132, 2133 and Khata No.236, Khatauni No.711, Khasra Nos. 2134, 2135, Plots-4, measur4ing 0-10-34 HMs situated in village Kehrian, PO AND Tehsil Jawali, District Knagra, H.P. along with the construction existing on the said lands consisting of one old house constructed by the forefathers of the parties and the new house constructed about two years back by the deceased Smt. Vidya Devi and the defendant No.1 has got 336/924 share,measuring 0-03-58 HMS in the said land and the proforma defendants No.2 to 4 have 51/924 share each (0-00-73 HMS in the said land on the basis of the Will dated 9.4.1991 comprised in Ex.P-1. The parties are left to bear their own costs. Decree sheet be drawn accordingly. All pending applications also stand disposed of.