Aditya Nath Mittal, J@mdashHeard learned counsel for the parties and perused the record. This second appeal has been filed against the judgment and decree dated 4.9.1979 passed by the District Judge, Faizabad, by which he has allowed the appeal of the respondent in Civil Appeal No. 217 of 1978 arising out of judgment and decree dated 3.4.1978 passed in Regular Suit No. 331 of 1975.
2. The plaintiff-appellants had filed a said civil suit for cancellation of the gift-deed alleging that he is illiterate villager. He had three daughters and the defendant-respondent was his real brother-in-law, who was serving at Calcutta. The defendant-respondent had said to the plaintiff that he will take care of his agriculture field provided he executes Will in his favour. Relying upon the defendant, the plaintiff agreed to execute the Will on 29.10.1969. The defendant brought the plaintiff to Tehsil Akbarpur and got executed the alleged gift-deed in favour of himself fraudulently and misrepresenting him that it was a Will. In the month of June, 1975, the defendant came to the house of the plaintiff and told that he has executed the gift-deed in his favour, therefore, he should leave the possession of the agriculture fields, upon which the plaintiff was shocked and when he enquired about the document, it came to his knowledge that the gift-deed has been got executed on the pretext of Will fraudulently and under misrepresentation, therefore, the suit was filed.
3. The defendant had admitted that the plaintiff is an illiterate and he used to go to the house of the plaintiff. Rest of the allegations have been denied. In the additional statement, he has stated that the plaintiff himself had shown his willingness to execute deed of gift in his favour regarding his property and he had himself executed the deed of gift on 29.10.1969, which was accepted by the defendant and received the possession of the land in dispute.
4. The consolidation proceedings also took place in which the name of the defendant has been mutated and he is looking after the said land. It was also stated that the said gift was executed by the plaintiff by his own free will and the suit has been wrongly filed against him.
5. Upon the pleadings of the parties, learned Munsiff had framed the following issues:
(i) Whether the gift-deed dated 29.10.1969 is liable to be cancelled as alleged in the plaint?
(ii) Whether the suit is under valued and the Court fee paid is insufficient?
(iii) Whether the suit is within limitation?
(iv) Whether the suit is barred by Section 49 of the Consolidation of Holdings Act?
(v) Relief?
6. After appreciating the evidence of both the parties, learned Munsiff came to the conclusion that the said gift-deed was got executed under misrepresentation and it was not a gratuitous deed. Learned Court also came to the conclusion that the said deed was executed understanding it as a Will and the said fact came to the knowledge of the plaintiff on 2.7.1975, therefore, the suit was within limitation. It was also held that the suit is not barred by provisions of Section 49 of the Consolidation of Holdings Act. Accordingly, the suit was decreed and the gift-deed dated 29.10.1969 which was registered on 12.4.1971 was cancelled by judgment and order dated 3.4.1978.
7. The said judgment was challenged by the defendant by way of Civil Appeal No. 217 of 1978 and the learned first appellate Court had allowed the appeal and the decree passed by the lower Court was set aside.
8. It is relevant to mention that this appeal was initially admitted on the following substantial questions of law:
(i) Whether the burden of proof is upon the defendant that the gift-deed was executed out of free Will of the plaintiff-appellant?
(ii) Whether the gift-deed in question was executed by exercising undue influence and fraudulent misrepresentation of the plaintiff-appellant?
(iii) Whether the gift-deed in question was executed against the provisions of Section 122 of the Transfer of Property Act by the plaintiff?
9. Accordingly, considering the said substantial questions of law, the second appeal was dismissed by this Court by order dated 8.12.1999. The said order of this Court was challenged by way of Civil Appeal No. 3009 of 2001 before Hon''ble the Apex Court and Hon''ble the Apex Court came to the conclusion that the order passed by the High Court is non-speaking and the Court has not considered the entire matter in its perspective. Therefore, the judgment dated 8.12.1999 passed by the High Court was set aside and the matter was remanded to this Court to dispose of the second appeal by judgment dated 29.9.2005.
10. Accordingly, this appeal has been re-heard.
The following substantial questions of law have been formulated by order dated 9.9.2014:
I. Whether the burden of proving the Gift-deed was in favour of the Defendant/Respondent, when the appellant/plaintiff stood in a fiduciary relationship with the Defendant/Respondent?
II. Whether the learned Appellate Court rightly decided the question of Limitation in filing the suit of the plaintiff/Appellant in accordance with Article 59 of the Limitation Act, against the Plaintiff/Appellant?
III. Whether the Gift-deed in question was executed by exercising undue influence and fraudulent misrepresentation on the plaintiff-appellant?
IV. Whether the Gift-deed in question was executed against the provision of Section 122 of T.P. Act by the plaintiff?
11. Learned counsel for the appellant has submitted that at the time of execution of the alleged deed, the plaintiff was not sane and was habitual of intoxicant. It has also been submitted that both the parties were in fiduciary relationship, therefore, in view of
12. Learned counsel for the appellant has relied upon Krishna Mohan Kul alias Nani Charon Kul and another v. Pratima Matty and others,
"12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the Courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been ingrained in Section 111 of the Indian Evidence Act, 1872 (in short the ''Evidence Act''). The rule here laid down is in accordance with a principle long acknowledged and administered in the Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.
13. In judging 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 dehors 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 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."
15. The corollary to that principle is contained in sub-section (3) of Section 16 of the Indian Contract Act, 1872 (in short ''Contract Act'').
16. At this juncture, a classic proposition of law by this Court in
It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall 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 a pardahnashin lady in
13. Learned counsel for the respondent has submitted that there are no pleading of undue influence, therefore, in absence of pleadings, the ground of undue influence could not be considered. It has also been submitted that there is no evidence of undue influence. It has also been submitted that the said document also remained with the plaintiff, who himself had produced it in the Court and has also paid penalty, therefore, he is not entitled to take the benefit of Article 59 of the Limitation Act alleging that he had no knowledge of the said deed.
14. It has also been submitted that at the time of execution of the deed, he was 46 years old, therefore, he cannot be said to be an old person, therefore the law laid down in
15. Learned counsel for the respondent has relied upon
"19. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In
20. Order 6 Rule 4 of the Code of Civil Procedure provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or 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. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading: if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particular, which give adequate notice to the other side of the case intended to be set up."
16. Learned counsel has further relied upon
"19. It is well-settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly, in accordance with the procedure prescribed, is not liable to be reopened in second appeal (
22. In view of this sub-section, the Court trying a case of undue influence of the kind before us, must, to start with, consider two things, 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? (
17. It is not disputed that the plaintiff is an illiterate person. It is also not disputed that the defendant is the real brother-in-law of plaintiff. It is also not disputed that the defendant is in employment at Calcutta. It is also not disputed that the deed in question remained with the plaintiff till filing of the suit and the plaintiff himself has produced the said deed alongwith his plaint. The suit of the plaintiff for cancellation of gift-deed was decreed by the trial Court while the said decree has been set aside by the first appellate Court holding that the defendant and his witnesses had clearly indicated that the document was admitted to have been executed by the plaintiff before the Sub-Registrar, therefore, the plaintiff was having knowledge of the said deed since its inception. Learned appellate Court also came to the conclusion that the said document was found to be deficient in stamp duty and penalty of its was paid on 20.2.1971 by the plaintiff. Therefore, at that stage, he was in a position to know what actually the document was.
18. Learned appellate Court also came to the conclusion that during the consolidation proceeding, the name of the defendant has been mutated on the basis of gift-deed and the said proceedings of consolidation were not challenged by the plaintiff. Learned first appellate Court also came to the conclusion that the Court below has not specifically said that any fraud was established to have been practised on the plaintiff and the judgment was based on undue influence. Learned first appellate Court also came to the conclusion that suit was barred by limitation but the learned Court below was right in holding that the jurisdiction of Civil Court was not barred under Section 49 of the Consolidation of Holdings Act.
19. First of all, the point of limitation is taken for consideration. The plaintiff has averred in his plaint that when in the month of June, 1975, the defendant came to the house of the plaintiff and told that he has executed the gift-deed in place of Will and asked him to leave the possession of the agricultural fields, then the plaintiff had got examined the said deed and came to the knowledge that the gift-deed has been got executed in place of Will. This fact has been narrated in detail in para 9 of the plaint. In para 14, the date of cause of action has been mentioned that when it came to the knowledge on 2.7.1975, then he got the cause of action.
20. The defendant in his written statement has simply denied the averments of para 9 as well as para 14 but in the written statement, the said dates of July, 1975 and 2.6.1975 have not been denied specifically. Learned trial Court has drawn the conclusion that the plaintiff came to know about the nature of the document in the month of June-July, 1975, therefore, the suit is well within time.
21. Learned counsel for the appellant has drawn the attention of this Court towards Article 59 of the Limitation Act which provides that the limitation of three years shall be available from the date of knowledge.
22. Order VIII Rule 5 C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. This Rule further provides that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
23. Learned counsel for the respondent has submitted that because the said deed has been produced by the plaintiff himself, therefore, the plaintiff should have known about the contents of the deed and he could have got it examined just after the date of execution.
24. It is not disputed that the alleged deed has been executed on 29.10.1969 and the suit has been filed in the year 1975. The averments of the plaintiff that the defendant came in the month of June to his house and told him that he should leave the agricultural field because he has executed the gift-deed in his favour, has not been denied specifically by the defendant. The plaintiff came to the knowledge of the said document on 2.7.1975 as mentioned in para 13 of the plaint. In view of provisions of Order VIII Rule 5, specific denial to these facts was required, which has not been done by the defendant, therefore, in view of provisions of Order VIII Rule 5 C.P.C., these facts shall be taken to be admitted. Apart from which, the plaintiff himself has appeared in the witness box and he has specifically stated in his statement about the fact that when he got examined the said document upon the saying of the defendant that the gift-deed has been executed in place of Will, then he came to knowledge regarding the nature of the said document.
25. In the cross-examination also, it has come that after executing the said deed, the defendant had gone to Calcutta and had come after 5-6 years and told that the gift-deed has been executed. In these circumstances, it is established that the plaintiff was not having the knowledge of nature of deed which he has executed. In view of evidence of the parties as well as in view of provisions of Order VIII Rule 5 C.P.C., it is proved that the plaintiff came to the knowledge regarding the nature of the deed in the month of June-July, 1975. Therefore, the plaintiff is entitled to the benefit of Article 59 of the Limitation Act. In this regard, the findings of trial Court are more close to the pleadings and the evidence of the parties while the learned first appellate Court has cursorily dealt with this aspect and has held that the deficient stamp duty and penalty was paid by the plaintiff, therefore, the plaintiff was in a position to know the nature of the deed. Learned first appellate Court has also derived this conclusion on the basis of mutation in consolidation proceedings.
26. It is well-settled law that the Civil Court is not bound by the findings of the consolidation authorities because they are summary in nature. Learned first appellate Court as well as learned trial Court have held that the suit was not barred under Section 49 of the Consolidation of Holdings Act.
27. It is not disputed that the plaintiff is an illiterate person and is a villager. The very fact that the said deed even after the execution remained in the possession of the plaintiff goes to show that had it been a deed of gift, it should have been handed over to the defendant immediately after its execution. Normally, the Will is retained by the person who had executed it. It has also come in the evidence that the plaintiff never intended to execute the gift-deed in favour of the defendant but he intended to execute the Will in favour of the defendant with a view to provide security to his family. It is also not disputed that at the time of execution of the said deed, the wife as well as three daughters of the plaintiff were alive and he was not having any male issue.
28. From the evidence on record as well as from the above discussion, it is clear that the nature of the deed in question came in the knowledge of the plaintiff only when the defendant returned from Calcutta in June, 1975 and asked him to vacate the agricultural fields, upon which he got examined the said document. It is, therefore, established that the plaintiff, prior to June-July, 1975 was not having the knowledge that the deed of gift has been got executed in place of Will. In these circumstances, the plaintiff is entitled to get the benefit of Article 59 of the Limitation Act and the suit was well within time. Accordingly, the substantial question No. 2 is decided in negative and in favour of plaintiff-appellant.
29. Now the aspect of burden of proof is taken for consideration. It is not disputed that the plaintiff and defendant stand in a fiduciary relationship as they are real brother-in-law (Sala and Jija).
30. Learned counsel for the appellant has relied upon Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Matty and others (supra) in which Hon''ble the Apex Court has specifically held that when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction.
31. In the present case, the defendant is real brother of the wife of the plaintiff, therefore, the fiduciary relationship is admitted. By the said deed of gift, the defendant is the beneficiary.
32. The plaintiff in his plaint has specifically pleaded the fraud, misrepresentation and undue influence in para 10 of the plaint. In the written statement the contents of para 10 have been denied and it has been stated that the said deed was executed by the plaintiff in his good senses and after understanding the contents of the deed. The defendant in his whole of the written statement has not denied that there was no fraud, misrepresentation or undue influence on the part of defendant. Accordingly, the provisions of Order VIII Rule 5 C.P.C. will again apply to such pleadings. Apart from it, the plaintiff in his statement on oath has also proved the said fraud, misrepresentation and undue influence and has given details of that. In the cross-examination, no adverse fact has come so as to disbelieve the statement of the plaintiff.
33. Learned counsel for the respondent has relied upon Ladli Prashad Jaiswal v. The Kamal Distillery Co. Ltd. and others (supra) in which Hon''ble the Apex Court has held that in view of provisions of Order VI Rule 4 C.P.C., there should be pleadings regarding misrepresentation, fraud, breach of trust, willful default or undue influence. Relying upon this judgment, learned counsel for the respondent has submitted that there are no pleadings to this effect.
34. I do not find any substance in the submission of learned counsel for the respondent because in para 10 of the plaint, the pleadings are very much specific regarding misrepresentation, fraud and undue influence.
35. Undoubtedly, it is a question of fact whether a person was in a position to dominate the will of another and procured a certain deed by undue influence.
36. Learned counsel for the respondent has relied upon Afsar Shaikh and another v. SolemanBibi and others (supra), according to which two things must be considered in a case of undue influence and they are (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?
37. In the present case, the relation between donor and donee is of real brother-in-law. Certainly, the donee being a real brother of the wife of the plaintiff was in a position to dominate the Will of the plaintiff. As far as the unfair advantage is concerned, it is admitted that at the time of execution of the said deed, the wife as well as three daughters of the plaintiff were alive, out of which one was married and two resided with the plaintiff, therefore, there was no need to the plaintiff to hand over his whole of the property to defendant for no reason.
38. From the pleadings of the plaintiff, it is also clear that the plaintiff was induced by the defendant that he will take care of the agricultural fields of the plaintiff provided he executes the Will in his favour. Admittedly, the defendant resides at Calcutta and he is serving there. It is also apparent from the averments in the plaint that relying upon the assurance of the defendant, the plaintiff agreed to execute the Will in his favour just to secure the life of his family members after his death. As far as the unfair advantage is concerned, it is clear from the evidence on record that there was no requirement for the plaintiff either to execute the Will or to execute the gift-deed because at that time, his wife as well as three daughters were alive. It was just on the inducement of the defendant, who was his real brother-in-law that the plaintiff had executed the said deed presuming it as "Will".
39. Certainly, the defendant is the beneficiary and in view of law laid down by Hon''ble the Apex Court in Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others (supra) the burden of proof was upon the defendant to have proved that there was no fraud, misrepresentation or undue influence but the pleadings as well as the evidence of the defendant in this regard are totally lacking. Learned trial Court has dealt with this aspect in detail and has rightly come to the conclusion that it was a burden of the defendant to have proved that there was no fraud, misrepresentation or undue influence. In this regard, the findings of learned first appellate Court are perverse and far away from the evidence on record. Accordingly, substantial question No. 1 is decided that the burden of proof of the gift-deed was upon the defendant-respondent.
40. As far as question No. 3 is concerned, as discussed above, there are specific pleadings in the plaint of the plaintiff that the said gift-deed has been got executed by playing fraudulent misrepresentation and undue influence, but this averments of the plaint have not been specifically denied. From the evidence of the plaintiff and his witness, it is also proved that even after execution of the said deed, the plaintiff remained in possession over the property in dispute. As concluded earlier, the plaintiff came to know about the nature of the deed in the month of June-July, 1975. It is admitted fact that the said deed remained in possession of the plaintiff till filing of the suit which in itself is sufficient to infer that the plaintiff had no intention to executed the gift-deed in favour of the defendant and had he executed the gift-deed in favour of the defendant, the defendant should have taken the possession of the gift-deed as well as the property in dispute.
41. The plaintiff Raja Ram, who has been examined as P.W. 1 has supported the contents of plaint and has specifically stated that there was no marginal witness of his village and he has no experience about the Court matter. P.W. 2 Mahaveer has further proved the possession of the plaintiff.
42. The defendant Ram Asrey has also been examined in the Court and the marginal witness of the gift-deed Raghubar Singh has been examined in the Court. The marginal witness Raghubar Singh has stated in his statement that it was a deed regarding his one house (Barotha). The defendant Ram Asrey has not specifically stated in the Court that there was no fraud or undue influence. As far as the execution of the said document is concerned, learned trial Court has not relied upon the statement of DW-2 Raghubar Singh on the ground that he does not know anything about the contents of gift-deed.
43. Learned trial Court has also come to the conclusion that had it been read over and explained to the plaintiff, then he would not have affixed his thumb impression on it while there was specific denial of the plaintiff that the said document was neither read over nor explained to him.
44. Learned first appellate Court has drawn conclusion on the basis of presumption that normally the document is explained by the Sub-Registrar before registration. In view of specific statement of the plaintiff, Raja Ram P.W. 1 and in view of ignorance of marginal witness Raghubar Singh D.W. 2, learned first appellate Court was not competent to draw such inference which is against the evidence.
45. Merely because the plaintiff has paid the additional stamp duty as well as penalty to the Sub-Registrar, is not sufficient to infer that he was having knowledge of the said document. The plaintiff by his pleadings in the plaint as well as his evidence has succeeded in proving the undue influence and fraudulent misrepresentation by the defendant which are not rebutted by the evidence of defendant. In this regard, the findings of learned trial Court are more close to the evidence on record and they are supported by cogent reasons while the findings of learned first appellate Court are perverse. Therefore, it is proved that the gift-deed in question was executed by exercising undue influence and fraudulent misrepresentation on the plaintiff-appellant. The substantial question of law is decided in affirmative.
46. Fourth substantial question is whether the gift-deed in question was executed against the provisions of Section 122 of the Transfer of Property Act? Section 122 of the Transfer of Property Act provides as under:
"122. "Gift'' defined-"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."
47. In view of the provisions, the gift must be voluntarily and it should also been accepted by the donee. In the evidence, it has come that the said gift-deed was not executed voluntarily but was the outcome of undue influence, misrepresentation and fraud. It has also come in the evidence that the plaintiff had not only retained the said gift-deed with him but he was also in possession of the property in dispute at the time of filing of the suit. There is no specific acceptance by the defendant. In view of aforesaid discussion, the said gift-deed cannot be said to have executed voluntarily, therefore, it was against the provisions of Section 122 of the Transfer of Property Act. The said substantial question of law is accordingly decided in affirmative and in favour of the plaintiff.
48. From the aforesaid discussion, it is clear that the plaintiff and the defendant stood in a fiduciary relationship and the said gift-deed was got executed by exercising undue influence and fraudulent misrepresentation. Learned trial Court has considered each and every aspect of the said transaction. His findings are more close to the pleadings and evidence on record while the findings of learned first appellate Court are far away from the pleadings and evidence on record. Although, it has not been argued but it is also relevant to mention that the learned first appellate Court has not formulated the points for determination in view of the provisions of Order XLI Rule 31 of the C.P.C.
49. In view of above, the judgment and order dated 4.9.1979 passed by the first appellate Court is liable to be set aside and the second appeal is liable to be allowed.
50. The second appeal is allowed.
51. The judgment and decree dated 4.9.1979 passed by the District Judge, Faizabad in Civil Appeal No. 217 of 1978 is set aside and the findings recorded by learned Munsiff, Akbarpur, Faizabad, in Regular Suit No. 331 of 1975 by judgment and decree dated 3.4.1978 are upheld.
52. The gift-deed in question dated 29.10.1969 which was registered on 12.4.1971 stands cancelled. The concerned Sub-Registrar is directed to make necessary endorsement in its records. Office is directed to send the certified copy of this order alongwith lower Court record to the Court concerned at an early date.
