Sureshwar Thakur,J.
1.The suit of the plaintiff/respondent herein (for short “the plaintiffâ€) for rendition of a decree, for permanent prohibitory injunction, besides for
rendition of a decree, for declaration, and, in the alternative for rendition of a decree for possession of the suit land, stood dismissed by the learned trial
Court. In an appeal carried therefrom, before the learned First Appellate Court, by the plaintiff, the latter Court allowed the appeal besides obviously
reversed the trial Court's judgment and decree, hence, the instant appeal.
2. Briefly stated the facts of the case are that the plaintiff filed a suit to the effect that the land bearing Khata No. 23, Khatauni No. 28, Khasra Nos.
754, 937, 940, 948, 984, 986,1017, 1070, 1072, 1073, 1074, 1076, 1078 and 1087 Kita 14 measuring 3-57-27 hectares as entered in the copy of the
Jamabandi for the year 1994-95 Ex. P-2 on record situated in Mohal Ram Beh, Tehsil Dehra, District Kangra, H.P. is recorded in the ownership of
the plaintiff to the extent of 1/4th share. In the name of Bir Singh to the extent of ½ share and in the name of defendant-appellant herein (for short
the defendant) Mehar Singh to the extent of 1/4th share and the same is jointly recorded in the possession of all the co-sharers. Similarly, the land
bearing Khata No. 24, Khatauni No. 29, Khasra Nos. 743, 744 and 745 Kita 3 measuring 3-65-89 hectares entered in the jamabandi for the year 1994-
95 Ex.P-2 is recorded in the ownership of the plaintiff-appellant to the extent of 1/8th share. In the ownership of defendant to the extent of 1/6th
share and also in the ownership and possession of other co-sharers. It is averred that the plaintiff is owner in possession of the suit land and is entitled
t remain as such in future also. The defendant has got no right, title or interest in the same. The plaintiff is an old, illiterate and blind lady and also
rustic villager. She has lost her eyes for the last 10 years and is completely blind. She has no issue and the plaintiff is being looked after by Bir Singh,
her brother-in-law and his family members and Bir Singh is also helping her in cultivation. Mehar Singh defendant is also a neighbor and nephew in
relation of the plaintiff. He approached and assured her that he would serve her throughout her life and would treat her like his mother, if the plaintiff
executes a will in his favour. It was assured that she will remain owner till her life time. On such assurance, the plaintiff agreed to execute a will in
favour of the defendant. So, the defendant took the plaintiff to Dehra and made her to sit somewhere outside Tehsil Office. He told the plaintiff that
he would get the will executed from some document writer and would get her thumb mark where she was sitting. After sometime, the defendant
brought some papers and asked the plaintiff to put her thumb mark. The contents of the documents were not read over to the plaintiff nor could she
see the same being blind. The defendant again took her to some office and there also the contents of the documents were not read over to her. Later,
she was taken back to village. Even no paper was handed over to her and she remained in the house. The defendant never rendered any services to
her. In the month of October, 2000, it is alleged that the defendant forcibly entered the suit land and threatened to cultivate the same. Bir Singh and his
family members, from whom the plaintiff gets the suit land cultivated, protested. On their protest, the defendant threatened that he is owner of the suit
land on the basis of so called gift deed. On this, the plaintiff asked Bir Singh and his son Vijay to enquire about whether really the defendant has got
any gift deed executed in his favour. Then it was found from the Patwari that the defendant had fraudulently and by mis-representation got the gift
deed of the suit land executed in his favour on January, 13,1993 alongwith a will on the same day in collusion with scribe and witnesses and also got
mutation of the suit land sanctioned and attested in his favour in absence of the plaintiff without her knowledge and consent. So, it is alleged that the
gift deed dated 15.1.1993 being result of fraud, mis-representation and undue influence, has got no effect on rights of the plaintiff. It is averred that the
defendant is openly threatening to take forcible possession of the suit land. As such, the suit was filed for declaration to the effect that the plaintiff is
owner in possession of the suit land to the extent of her share. The so-called gift deed dated January 15,1993 is wrong, illegal and null and void being
result of fraud, mis-representation and undue influence having no effect on the rights of the plaintiff. The mutation No. 121 sanctioned and attested on
the basis of so called gift deed is also wrong and illegal and for permanent prohibitory injunction to restrain the defendant from interfering in the suit
land, alienating the same getting his title transferred outing and removing the trees from the same and changing the nature of the suit land. In the
alternative, a prayer for possession of the suit land has been made in case, the defendant succeeds in taking the possession.
3. The suit was contested by the defendant and he has filed written statement, wherein, he has taken preliminary objections of no cause of action to
file the suit, the suit is not within time, the plaintiff is estopped by her act and conduct to file the suit and that the suit has not been properly valued for
the purpose of Court fee and jurisdiction.
4. On merits, it is averred that the age of the plaintiff at the time of execution of the gift deed was hardly 50 years. No doubt, she is illiterate, but very
sensible and worldly-wise lady, knowing fully her good or bad. She is also not totally blind at the time of execution of the gift deed, the plaintiff had
fully eye vision. It is averred that husband of the plaintiff who died on March, 9,1991 remained ill with cancer for three years prior to his death. During
his illness, the defendant served him and bore all the expenses of his treatment and took him to PGI. After his death, the defendant had been serving
the plaintiff and had even detailed his daughter Reena Kumari for her services, who had been cooking meals cleaning her clothes and doing all her
household chores. The defendant had been cultivating her land and giving produce to the plaintiff qua her share. It is alleged that after the death of her
husband, the plaintiff started saying that she did not want to carry the debt of the ervices rendered to her husband and to herself by the defendant and
she expressed her desire to gift away one-half of her property in favour of the defendant and to execute a will for the remaining one-half in his favour
for past and future services. She thus came to Dehra of her free volition and voluntarily executed a gift deed in respect of her property mentioned in
the gift deed dated January 15,1993 and also executed a will of her remaining property in favour of defendant. After execution and registration of
these documents, the defendant continued serving her as heretofore and his daughter remained with her and rendered services till one month prior to
her marriage on September 28,2000. It is averred that as a result of fixing of marriage of Reena, the defendant and his family members got busy for
the preparation of her marriage and Reena Kumari also curtailed her services to the plaintiff and came to her father’s house. This created a
temporary vacuum and Bir Singh, who was on the look out for an opportunity, took advantage of the same and sneaked in and started poisoning the
mind of the plaintiff against the defendant. He firstly got a will scribed in favour of his sons and then got the suit instituted against the defendant. It is
denied that the plaintiff was being looked after by Bir Singh or that he had been cultivating her land. In fact, all types of services were rendered to the
plaintiff by the defendant and his family members including his daughter and his family members including his daughter Reena Kumari. It is denied that
the defendant approached the plaintiff for execution of a will in his favour. Rather it was the plaintiff who voluntarily executed the gift deed in respect
of her one-half share and will for her remaining share in favour of the defendant for his past and future services. It was plaintiff who took the
defendant to Dehra where she voluntarily executed both these documents. The documents were scribed by the deed writer under the instruction of
the plaintiff and witnessed by the witnesses on her request. Earlier the defendant was cultivating the share of the plaintiff bsides his own land. But
now he is cultivating his own share in the suit land. It was only when she fell in the evil hands of Bir Singh that she started getting her share of land
cultivating through Bir Singh. In fact, the defendant is cultivating the land equivalent to his share and prior to Rabi crop 2001, that is up to Kharif 2000,
the defendant had been cultivating her share also. It is denied that the gift deed is the result of fraud or misrepresentation or undue influence and so
was the case with the will. So dismissal of the suit had been prayed for.
4.The plaintiff filed replication to the written statement of the defendant wherein, she denied the contents of the written statement and re-affirmed and
re-asserted the averments, made in the plaint.
5.On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1.Whether the gift deed dated 15.01.1993 executed by the plaintiff in favour of the defendant was a result of undue influence, fraud and
misrepresentation as alleged? OPP
2.Whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP
3.Whether in the alternative the plaintiff is entitled for the possession of the suit land? OPP
4.Whether the plaintiff is estopped by her act and conduct from filing this suit? OPD.
5.Relief.
6.On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, dismissed the suit of the plaintiff. In an appeal,
preferred therefrom, by the plaintiff, before the learned First Appellate Court, the latter Court allowed the appeal, and, reversed the findings recorded
by the learned trial Court.
7.Now the defendant has instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded, in its impugned
judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 29.11.2004, this Court, admitted the
appeal on the hereinafter extracted substantial question of law:-
1.Whether the lower appellate Court erred in illegally holding that the suit of the respondent was within the period of limitation?
2.Whether the findings of the first appellate Court that the plaintiff was blind, was dehors the evidence on record and the court erred in apply
principles applicable to pardanashin woman?
3.Whether the findings of the first appellate Court that impugned gift deed was not executed by the plaintiff are perverse and dehors the evidence on
record?
4.Whether the first appellate Court erred in holding that the impugned Gift Deed was visited by fraud and mis-representation when particulars of said
fraud and mis-representation were not detailed in the pleadings? Substantial questions of Law No. 1 to 4.
8. The learned counsel appearing for the defendant has contended with vigour (i) that with the apposite period of limitation warranting attraction
hereat, for hence the suit of the plaintiff, wherein, she espouses rendition, of, a decree qua gift deed , being quashed and set aside, (ii) for hence being
construable, to fall, within the apposite statutorily enjoined period of limitation, rather, standing comprised, in the provisions borne, in, Article 100 of the
Limitation Act, wherein, a period of three years, rather stands prescribed, (iii) and, with period thereof, hence, commencing, since, the execution of gift
deed, in the year 1993, qua the suit land, upon, the defendant, (iv)whereas, with the suit of the plaintiff, rather standing instituted inordinately,
therefrom, hence, much beyond the aforesaid apposite prescribed period of limitation, thereupon, the suit of the plaintiff rather being barred by
limitation. However, the aforesaid submission addressed before this Court, by the learned counsel appearing for the defendant/appellant herein lacks
vigour, (v) as evidently hereat, given though the apposite gift deed, qua the suit land, hence standing executed, and, registered much prior to the filing
of the suit or say in the year 1993, (vi) yet the mere factum of its making, and, existence thereat, would not thereat per se engender any cause of
action, vis-a-vis the aggrieved plaintiff, nor thereupon the belatedly therefrom, instituted suit of the aggrieved plaintiff, attracts the bar of limitation nor
hence the date of execution, and, registration of the gift deed, comprise(s) the commencement, of accruals of cause of action vis-Ã -vis the aggrieved,
(vii) rather the commencement of the period of limitation prescribed therein, stands engendered “on†evident occurrences, of, or rearing(s) of
cause of action(s) vis-à -vis the aggrieved plaintiff, (viii) “occurrences whereofâ€, taking place in contemporaneity of meteings, of, evident
apposite threatenings by the defendant, for hence dispossessing the plaintiff, from, the suit land, especially when thereupon hence the defendant
concerted to enforce the apposite gift deed. Moreover, the apt period qua limitation rather commences when the right to sue accrues, nowat, in the
instant case the said right to sue, evidently accrued to the plaintiff, in the year 2000, whereat the defendant forcibly entered the suit land, and,
threatened, to forcibly cultivate the suit land, (ix) also hence concerted to enforce the gift deed, on accruals whereof, with the plaintiff hence promptly
instituting the suit, against, the defendant, renders it to fall within limitation.
9.Uncontrovertedly on 15.1.1993, the plaintiff executed atestamentary disposition, vis-Ã -vis her estate, upon the defendant, and, also on the same
date, she executed a gift deed vis-Ã -vis the defendant. The apposite gift deed, is, borne in Ex. DW-1/A. Uncontestedly, the plaintiff rather cancelled
the testamentary disposition made by her vis-Ã -vis her estate, upon, the defendant.
10.The trite factum of valid execution, of, gift deed borne, in, Ex.DW-1/A, is cast a piercing onslaught, by the plaintiff, on anvil of (a) hers being blind
and illiterate (b) hers being beguiled to execute a gift deed vis-Ã -vis her estate, upon, the defendant, despite hers holding the solitary intention, of only,
executing a testamentary disposition vis-Ã -vis her estate, upon, the defendant.
11.The illiteracy of the plaintiff, besides, hers’ at the stage contemporaneous, to the execution of Ex.DW-1/A, hence being beset with blindness, is
acquiesced by the defendant, by his making an apposite echoing, in his cross-examination. The effect of the aforesaid acquiescence, is, of hence the
defendant being enjoined, with an onerous obligation, to, efficaciously prove the execution of Ex. DW-1/A, by the plaintiff, especially qua its execution
being a sequel of her free will, and, volition, (i) whereupon alone the testified espousal of the plaintiff, of hers, being driven by her volition, to only
execute a testamentary disposition vis-Ã -vis her estate, upon the defendant, and, hers being also beguiled to execute, hence beyond her volition,
Ex.DW-1/A, rather would hence stand efficaciously blunted.
12.Since DW-1 (Jagdish Chand), the scribe of the aforesaid documents, has, admitted the contemporaneity, of, execution of both, thereupon prima-
facie hence, (i) an inference, is, erected of the plaintiff, on the date, when she executed a testamentary disposition, hers also executing Ex.DW-1/A.
However, the effect of hers, hence, executing both the aforesaid apposite registered instruments, would not perse, yet ingrain Ex. DW-1/A, with any
shroud of any invalidation, (ii) unless, the endorsements made by the Registering officer, on Ex.DW-1/A, with echoings therein of, his reading over,
and, explaining all contents thereof, to the plaintiff, and, also his assuring hers comprehending them, and, thereafter hers’ appending, in his
presence, her thumb impressions thereon, and, also his in contemporanity thereof, signaturing the relevant endorsements occurring in Ex.DW-1/A, are
all stripped, of the presumption of truth, hence enjoyed by them.
13.The presumption of truth imputable to the relevant endorsements, is, shattered, in face of (a) the testification occurring in the cross-examination of
the plaintiff, wherein she aptly belies the veracity of all the recitals, occurring, in the relevant endorsement (b) DW-2 (B.S Rana) the identifier of
execution of Ex. DW-1/A, in his cross-examination also making an echoing of the contents of Ex.DW-1/A being neither read over nor explained, to
the executant, by the Registrar concerned.
14.Be that as it may, even if, the aforesaid testifications, when hence may erode the efficacy, of, the relevant endorsement(s), occurring, in Ex.DW-
1/A, yet the counsel for the defendant rested his espousal upon the testification, of, one Tek Singh, a witness to Ex.DW-1/A, and, who alongwith
executant, had, for the relevant purpose, visited hence the office of the sub Registrar, (a) wherein he echoes of the relevant endorsements, carrying
efficacy, (b) hence he further espouses of the testification of DW-3, belittling the effect, if any, vis-Ã -vis the inveracity of the relevant endorsements,
as purportedly emanate, from the testifications of DW-1, and, of the plaintiff. However the apposite nullificatory effects, of the testification of DW-3
vis-Ã -vis the testification, of, the plaintiff, and, the afore-referred testification of DW-2, is contrarily scuttled, (c) by the factum of his testification
being concerted to be rather sparking suspicion, (d) rested upon the factum of his being related to the defendant, especially, when in consonance with
arousal of apt suspicion(s), an apt suggestion stood meted to him, by the learned counsel for the plaintiff, while, holding him to cross-examination.
Upon the aforesaid sparking of suspicion vis-Ã -vis the testification of a marginal witness, to Ex.DW-1/A, standing construed alongwith the testified
espousal, of, the plaintiff, of hers being inclined, to only volitionally, execute a testamentary disposition vis-Ã -vis her estate upon the defendant, and,
hers beyond her volition, hence, being beguiled, to also, on the same date rather execute Ex.DW-1/A, and, also is entwined with DW-2, making, a
testification, in his cross-examination, whereupon, he belies the veracities, of the apposite endorsement, does inevitably beget the concomitant sequel
of (a) prima-facie the veracity of the relevant endorsement being belied (n) hence the presumption of truth imputable vis-Ã -vis it, being also scuttled.
15.Dehors the above inference, the learned counsel for the defendant, hence, for erasing all ill effects thereof, when could well, even after conclusion,
of recording, of, the defendants’ evidence, hence institute an apposite application, for, summoning the Sub- Registrar concerned, as, the
defendant’s witness, (i) for hence making apposite elicitations, from him, for hence imputing solemn veracity vis-à -vis the relevant endorsements,
made by him, upon Ex.DW-1/A. However, after completion of adduction of defendant’s evidence, and, even with all apposite ill-effects, rather
occurring in the testification of the plaintiff, and, in the testification of DW-1 besides also with suspicion ingraining, the affirmative testification, of DW-
3, a marginal witness to Ex.DW-1/A (ii) yet legal wisdom did not prevail upon the learned counsel for the defendant, for belittling all ill-effects thereof,
by his concerting to seek leave of the Court, for summoning the Sub-Registrar concerned, for enabling him to render testification(s) in conformity vis-
à -vis, the apposite endorsements made by him, upon Ex.DW-1/A. The effect of the aforesaid omission, of the learned counsel for the defendant, is
of hence all the ill-effects, of the testifications, of the plaintiff, and, of DW-3, remaining un-eroded besides remaining intact, (a) wherefrom it is apt to
conclude, that the presumption of truth enjoyed by the endorsements occurring, in Ex.DW-1/A being eroded (b) with a further corollary, of the
testified espousal, of the plaintiff of hers being beguiled to execute Ex.DW-1/A, and, its execution being beyond her volition also obviously standing
efficaciously proven. All the substantial questions of law aforesaid are answered in favour of the plaintiff and against the defendant
16.In view of the above, the appreciation, of, the evidence by the learned first Appellate Court, does not suffer, from any infirmity as well as
perversity. Consequently, I find no merit in this appeal, which is accordingly dismissed, and, the judgment and decree of the learned first Appellate
Court, is, maintained, and, affirmed. Records be sent back forthwith. Decree sheet be prepared accordingly. All pending applications also stand
disposed of. No order as to costs.
