Kuldip Singh, J.@mdashThis appeal has been directed against judgment, decree dated 13.6.2001 passed by Learned Additional District Judge, Solan, Camp at Nalagarh in Civil Appeal No. 58-NL/13 of 2000 affirming judgment, decree dated 1.8.2000 passed by Learned Sub Judge, Nalagarh in Civil Suit No. 17/1 of 1995. Puran Chand, Plaintiff died when the suit was in the trial Court and his two sons Sunder Singh and Bhagat Singh were brought on record. The other two sons are Defendants in the suit. In the judgment, the parties are referred as Plaintiff and Defendants.
2. The brief facts of the case are that Puran Chand, Plaintiff had filed a suit for declaration that he is owner in possession of the suit land described in the plaint with consequential relief of permanent prohibitory injunction restraining the Defendants his two sons from alienating the suit land. The further case unfolded by Puran Chand was that he was infirm, aged, sick for the last two years. He was owner of the suit land. The Defendants brought him to the residence of Defendant No. 2 in the first week of May, 1993 on the pretext of medical treatment. He was residing with his eldest son at Mahmla.
3. The Defendants suggested to Plaintiff to appoint them as their General Power of Attorney to look after the land and property of the Plaintiff in his absence from the village. The Defendants, their father-in-law and associates brought the Plaintiff on 29.5.1993 to Ram Shehar for preparing power of attorney. The Plaintiff was administered some medicines. The signatures of Plaintiff were obtained on some papers representing these to be General Power of Attorney. Some documents were got signed before the Sub Registrar, Ram Shehar.
4. The Defendants subsequently represented the Plaintiff that General Power of Attorney earlier executed was defective and fresh General Power of Attorney was to be executed. The Defendants brought the Deed Writer and Sub Registrar for getting the previous Power of Attorney revoked and to execute a new General Power of Attorney. The signatures of Plaintiff were obtained by representing the documents to be cancellation of earlier General Power of Attorney and to execute fresh General Power of Attorney.
5. The Plaintiff subsequently came to know that gift deeds have been got executed by the Defendants in their favour from Plaintiff which gift deeds are the result of misrepresentation, undue influence exerted on the Plaintiff. On these allegations, the suit was filed.
6. The suit was contested by the Defendants by filing written statement. It was alleged that the Plaintiff was residing with Defendants. The other two sons of the Plaintiff namely Sunder Singh and Bhagat Singh are residing separately and were not treating the Plaintiff well, rather they were maltreating the Plaintiff. The Plaintiff was an educated person and had served for 45 years. The Plaintiff executed gift deeds due to love and affection voluntarily. The gift deeds are genuine documents and were executed by the Plaintiff as per his wishes. The suit is false. The replication was filed reiterating the stand taken in the plaint.
7. On the pleadings of the parties, the following issues were framed:
1. Whether the Plaintiff is owner in possession of the suit land, as alleged? ...OPP
2. Whether the entries recorded in the revenue record are wrong, illegal and inoperative on the rights of the Plaintiff, as alleged? OPP
3. Whether the Plaintiff is entitled to the relief of injunction? OPP
4. Whether the Plaintiff has executed a valid gift deeds dated 29.5.1993 and 18.9.1993 in favour of the Defendants, as alleged? OPD
5. Whether the Plaintiff is estopped to file the present suit by his act and conduct? OPD
6. Whether the suit is not maintainable? OPD
6-A. Whether the Plaintiff has no locus-standi to file the present suit? OPD
7. Relief.
The issues No. 1 to 4 were answered in affirmative, issues No. 5 and 6-A in negative, issue No. 6 in partly negative and the suit was decreed as per operative part of the judgment by the Learned Sub Judge on 1.8.2000. In appeal, the Learned Additional District Judge on 13.6.2001 affirmed the judgment, decree dated 1.8.2000, hence second appeal which has been admitted on the following substantial questions of law:
1. What is the Learned Courts below are right in holding that the gift deed Exhibit DW-1/A dated 29.5.1993 has been registered in accordance with law.
2. Whether the Learned lower appellate Court is right in drawing an adverse inference u/s 114(g) of the Indian Evidence Act for not examining Harbans Singh, one of the attesting witness to Ex.DW-1/A, whereas, this adverse inference ought to have been drawn against the alleged donee/Respondents.
3. Whether the Learned lower appellate Court is right in not discussing the oral as well as documentary evidence as required under law being last Court of fact.
8. I have heard the Learned Counsel for the parties and have also gone through the record. It has been submitted on behalf of the Appellant that the Courts below have erred in upholding gift deed Ex.DW-1/A dated 29.5.1993. The Learned lower appellate Court has erred in drawing adverse inference u/s 114(g) of the Indian Evidence Act for not examining Harbans Singh attesting witness of gift deed Ex.DW-1/A. The Learned lower appellate Court was duty bound to discuss entire oral and documentary evidence while considering the appeal. It has been submitted that the impugned judgment, decree to the extent upholding the gift deed Ex.DW-1/A are not sustainable. The Learned Counsel for the Respondents/Defendants while supporting the impugned judgment, decree has submitted that the Courts below have erred in partly decreeing the suit of the Plaintiff. He has submitted that all gift deeds have been rightly and validly executed in favour of the Defendants as per the wishes of the donor. The Learned Counsel for the Respondents/Defendants has prayed for dismissal of the appeal.
9. The substantial questions of law No. 1 to 3 referred above, are interconnected and, therefore, all of them are taken up collectively for determination. Ex.DW-1/A is the registered gift deed dated 29.5.1993 by Puran Chand in favour of Sucha Singh and Shyam Singh. Ex.DW-3/A is the gift deed dated 18.9.1993 by Puran Chand in favour of Sucha Singh and Sham Singh registered on 19.9.1993. Ex.DW-3/B is the gift deed dated 18.9.1993 by Puran Chand in favour of Sucha Singh and Sham Singh registered on 19.9.1993. In gift deed Ex.DW-1/A Gita Ram, Nambardar and Harbans Singh are the attesting witnesses. This gift deed is scribed by one Ram Parkash Sharma. On gift deeds Ex.DW-3/A and Ex.DW-3/B Gita Ram, Nambardar and Bachnu Ram are the attesting witnesses and these gift deeds are scribed by Ashok Kumar Sharma.
10. PW-1 Bhagat Singh has stated that his father asked him to obtain copies on 4.11.1993 and after obtaining the copies, his father came to know that the Defendants have committed fraud with him by obtaining two gift deeds and one will. The will was revoked. PW-1 has not stated that he has personal knowledge of the facts and circumstances under which the gift deeds Ex.DW-1/A, Ex.DW-3/A and Ex.DW-3/B were executed. He has rather stated that his father was matriculate and knew English as well as Urdu. He served sugar mill for 35 years. The Plaintiff examined only PW-1. However, some documents were tendered by the Counsel for the Plaintiff in the evidence.
11. DW-1 Ram Parkash, Petition-cum-Document Writer has stated that he scribed the gift deed Ex.DW-1/A on 29.5.1993 on the instructions of Puran Chand, which was in favour of Sucha Singh and Shyam Singh. The gift deed was read over and explained to Puran Chand who after understanding the same signed the document. The marginal witnesses were Gita Ram, Nambardar and Harbans Singh. The entry of gift deed has been made by him at serial No. 103 dated 29.5.1993 in his Register. The Sub Registrar also reached the spot. The gift deed was presented before the Sub Registrar for registration. He has denied that the document was represented to Puran Chand as power of attorney. He also denied that signatures of Puran Chand were obtained on Ex.DW-1/A by representing the document as power of attorney.
12. DW-2 Gita Ram has stated that he is attesting witness of gift deed Ex.DW-1/A. Puran Chand was literate. The gift deed was prepared on the instructions of Puran Chand. The gift deed was prepared at Goljamala and was attested at that place. Puran Chand was in sound disposing mind. The scribe and Tehsildar were also there. He has denied that Puran Chand on that date was told that power of attorney has been prepared. He has denied that document was not read over to Puran Chand. He denied that Ex.DW-1/A was not executed by Puran Chand.
13. DW-3 Ashok Kumar, Petition Writer has stated that gift deeds Ex.DW-3/A and Ex.DW-3/B were typed by him and were entered at serial Nos. 196 and 197 in his Register. These gift deeds were executed by Puran Chand in favour of his sons Shyam Singh and Sucha Singh. The gift deeds were typed by him on the instructions of Puran Chand. Gita Ram and Bachnu Ram were the attesting witnesses. The Sub Registrar had not gone to the spot on that date. On that date, no witness was there. He obtained the signatures of Puran Chand and handed over both the documents to Defendants.
14. DW-4 B.R. Chaudhary, Naib-Tehsildar has stated that he remained posted as Sub Registrar from 1989 to June, 1994 at Ram Shehar. Ex.DW-3/A, Ex.DW-3/B and Ex.DW-1/A are attested by him at Goljamala. These documents were presented by Puran chand who was identified by Gita Ram, Nambardar, Bachnu Ram was witness. Ex.DW-3/A, Ex.DW-3/B and Ex.DW-1/A were read over to Puran Chand and in token of correctness of these documents he signed the same on their backs. In cross-examination, he has stated that Ex.DW-1/A, Ex.DW-3/A and Ex.DW-3/B were not scribed in his presence. On both occasions he was present on the spot for 30 to 45 minutes. He does not know Ex.DW-3/A and Ex.DW-3/B were typed at Ram Shehar. The Registration Clerk was accompanying him. He denied that Ex.DW-3/A and Ex.DW-3/B were represented to be power of attorneys.
15. DW-5 Shyam Singh has stated that gift deeds were prepared at the instance of Puran, who used to live with him. The gift deeds were prepared at Goljamala. The Sub Registrar came at Goljamala, who attested the gift deeds on the spot. He and his brother had good relations with his father. DW-6 Bachnu Ram has stated that on 19.9.1993 Puran Chand had executed gift deeds Ex.DW-3/A and Ex.DW-3/B in his presence in favour of the Defendants, then he stated that Ex.DW-3/A and Ex.DW-3/B were not prepared in his presence. The witness was cross-examined on behalf of the Defendants after obtaining permission from the Court. But in cross-examination, he has said nothing helping the Defendants.
16. DW-2 Gita Ram marginal witness has proved the gift deed Ex.DW-1/A. The gift deed was prepared on the instructions of Puran Chand, who was in sound disposing mind. DW-1 Ram Parkash, scribe has also stated that gift deed Ex.DW1/A was scribed by him on the instructions of Puran Chand in favour of Sucha Singh and Shyam Singh. Puran Chand signed the gift deed after understanding the same. It has come on the record that Puran Chand was matriculate and he also remained in service in sugar mill for 35 years. Puran Chand thus could not be equated with illiterate rustic person. DW-4 B.R. Chaudhary, Sub Registrar has stated that Ex.DW-1/A was attested by him at Goljamala which was read over to Puran Chand and in token of correctness of the same he signed Ex.DW-1/A. It is not the case of the Plaintiff that Defendants did not accept the gift deed Ex.DW-1/A. The case projected by the Plaintiff was that special power of attorney was to be prepared but instead gift deed was prepared. The Plaintiff has miserably failed to prove this allegation. Thus, the execution of gift deed Ex.DW-1/A by Puran Chand in favour of Sucha Singh and Shyam Singh has been proved. The two Courts below have rightly appreciated the execution of gift deed Ex.DW-1/A by Puran Chand in favour of Sucha Singh and Shyam Singh.
17. DW-3 Ashok Kumar has stated that gift deeds Ex.DW-3/A and Ex.DW-3/B were typed by the witness on the instructions of Puran Chand. Gita Ram and Bachnu Ram were the attesting witnesses. He has also stated that on that date no witness was there. He obtained the signatures of Puran Chand and handed over both the documents to Defendants. DW-4 B.R. Chaudhary, Naib Tehsildar has stated that Ex.DW-1/A, Ex.DW-3/A and Ex.DW-3/B were not scribed in his presence. DW-6 Bachnu Ram has stated that on 19.9.1993 Puran Chand had executed gift deeds Ex.DW-3/A and Ex.DW-3/B, but then he has also stated that Ex.DW-3/A and Ex.DW-3/B were not prepared in his presence. The other marginal witness Gita Ram though appeared as DW-2 but he has said nothing about the execution of gift deeds Ex.DW3/A and Ex.DW-3/B.
18. The execution of gift deeds Ex.DW-3/A and Ex.DW-3/B has not thus been proved. The Learned Counsel for the Defendants has relied
19. The Learned Counsel for the Defendants has also submitted that the Courts below have erred in not dismissing the whole of the suit of the Plaintiff. He has submitted that even if no appeal was filed by the Defendants against the judgment, decree dated 1.8.2000 of the trial Court and judgment and decree dated 13.6.2001 of the lower Appellate Court, this Court in second appeal is competent to grant the relief to the Defendants which was not granted by the two Courts below. He has relied Order 41 Rule 33 CPC in support of this submission. The Learned Counsel has relied
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21. It cannot be said that the two Courts below have misconstrued, misinterpreted the material on record in upholding the execution of gift deed Ex.DW-1/A and recording a finding that execution of gift deeds Ex.DW-3/A and Ex.DW-3/B has not been proved. The substantial questions of law No. 1 and 3 are decided against the Appellant. The execution of gift deed Ex.DW-1/A has been proved, therefore, there is no question of drawing adverse inference for not examining Harbans Singh second attesting witness of Ex.DW-1/A when execution of gift deed Ex.DW-1/A has been proved by DW-2 Gita Ram and other evidence on record. The substantial question of law No. 2 is accordingly decided.
22. The contention of Learned Counsel for the Respondents that whole of the suit of the Plaintiff should have been dismissed in favour of the Defendants is also rejected once the execution of gift deed Ex.DW-3/A and Ex.DW-3/B has not been proved and execution of gift deed Ex.DW-1/A has been proved. In these circumstances, there is no merit in the appeal which is liable to be dismissed.
23. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.
