Harcharan Singh Hazooria v. Kulwant Singh Hazooria & Ors.

15. It is further urged that the answering defendants have not only contributed for acquisition of the property but also for its construction and its renovation from time to time. The bondage was complete and absolute between the parents and the answering defendants. Defendant No. 1 was also the attorney to look after and manage the suit property constituted by the deceased mother. On the other hand the plaintiff left India in 1961 and settled in Germany. Some sporadic visits to India were made by the plaintiff. It is further stated that the deceased mother was a worldly lady. She understood English. She used to regularly watch English news which was part of her daily routine. Though unable to sign in English, she understood the contents thereof more so when explained to her. She did not suffer from any mental infirmity in any manner whatsoever. She was completely alert and able to make her own judgment at the time of her death. Arthritis by no stretch of imagination can bring in mental infirmity. Arthritis did restrict her physical movement only.

16. It is further stated that the parents had spent money on the plaintiff for his education abroad and helped him in settling in Germany. Not once did the plaintiff make an effort to take his mother to Germany in the last 25 years.

17. It is stated that the Sub-Registrar was called home only as a matter of convenience. This is as per normal practice especially for senior citizens. Before execution of the documents, the contents were duly explained to Smt.Jaswant Kaur. It is stated that members of a family can be witnesses to the deed. Hence, the fact that the daughters of defendants No.1 and 3 were witnesses is of no effect. It is admitted that the stamp duty was paid by the deceased mother which was withdrawn from her bank account. Existence of any fiduciary relation is denied. It is prayed that the suit be dismissed.

18. The defendants have also filed a counter-claim seeking a decree of mandatory injunction directing the plaintiff to remove himself and his belongings from the one room with attached bath on the second floor of the suit property. A decree for mesne profits is also sought.

19. I may note that defendant No.2, namely, the sister of the plaintiff and defendant No.1 also filed a written statement on 04.03.2009. In the written statement, she states that she used to visit her mother Late Smt.Jaswant Kaur at least once in a week and used to spend the day with her. For the last three years, prior to her death, she noted that Smt.Jaswant Kaur used to frequently forget things and at times, she had difficulty in even recognizing the said defendant No.2. It is also pleaded that in 1986 Smt.Jaswant Kaur had executed a Will whereby she had provided that her two sons plaintiff and defendant No.1 would be entitled to equal shares in the suit property and some amount was to be paid to defendant No.2. In 1996, she again executed her last Will and Testament where again she provided for the plaintiff and defendant No.1 to be entitled to half share in the suit property. The plaintiff and defendant No.1 were directed to pay a sum of Rs.10 lacs to the said defendant No.2. It is also stated that in the last three years Smt.Jaswant Kaur was not in a deposing condition and was incapable of managing her affairs. She has also stated that Late Smt.Jaswant Kaur could neither read nor speak English. She was well conversant with Punjabi language/Gurmukhi which she could read and write. She confirms execution of the earlier Wills of 1986 and 1996 stating that she was present at that time and the contents of the Wills were duly explained to Smt.Jaswant Kaur.

20. Subsequently, on 18.10.2010 Smt.Nirmal Tej Kaur Bedi, defendant No.2 filed an affidavit where she has retraced her statement stating that her mother i.e. Late Smt.Jaswant Kaur was not in a deposing state of mind and was incapable of making and executing her own decisions. In the affidavit, defendant No. 2 now states that her mother who died at the age of 98 years was possessed of all her faculties and the same remained intact and she looked after her own interest. In another affidavit dated 08.11.2010, she has reiterated the contents of the written statement filed in March, 2009. She further states that she is close to both the families and would not like to participate in the legal proceedings.

21. The issues were framed on 25.05.2012 as follows:- “1. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction? OPD 1 & 3

2. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 1 & 3

3. Whether Ms. Jaswant Kaur was conversant with English language? OPP

4. Whether the gift deeds dated 23rd May, 2007 and 2nd June, 2008 were not executed by Ms. Jaswant Kaur? OPP

5. Whether the gift deeds dated 23rd June, 2008 are sham, bogus and have been obtained by playing fraud by the defendant nos. 1 and 3 on the plaintiff and late Ms. Jaswant Kaur? OPP

6. Whether the gift deeds are unconscionable? OPP

7. Whether the gift deeds have been obtained by exercising dominance and undue influence by the defendant nos. 1 and 3 on the plaintiff and Ms. Jaswant Kaur? OPP

8. Whether the gift deeds are hit by Section 16 of the Indian Contract Act, 1872? Onus to prove on both parties

9. Whether Ms. Jaswant Kaur has validly executed the Will dated 5th January, 1996? OPP

10. Whether the plaintiff is entitled to a decree of partition as prayed for? OPP

11. Whether the plaintiff is entitled to a decree of rendition of accounts? OPP

12. Whether defendant nos. 1 and 3 are entitled for a decree of mandatory injunction, as claimed in their counterclaim? OPD 1 & 3 l[3]. Whether defendant nos. 1 and 3 are entitled to mesne profits, if so at what rate and for which period? OPD 1&3

14. Relief”

22. Issues Nos. 3, 4 and 7 were recast via order dated 06.07.2012. The recast issues read as follows:-

3. Whether Mrs.Jaswant Kaur was conversant with English language? OPD 1 & 3

4. Whether gift deeds dated 23.5.2007 and 2.6.2008 were executed by Mrs. Jaswant Kaur? OPD 1 & 3

7. Whether gift deeds have been obtained by exercising dominance by the defendants No.l & 3 on the plaintiff and Mrs. Jaswant Kaur? OPP

23. I may note that during the pendency of the proceedings, defendant No. 1 expired on 05.03.2017. On 08.03.2017, this court directed that the natural heirs of defendant No. 1 be substituted in his place, namely, Smt.Manohar Bhasin Hazooria, Mrs. Kanwal Sahni, Mrs. Amrita Kataria, Mrs. Seema Singh, Mrs. Danita Sawhney and Mrs. Geetika Anand.

24. Parties have led their evidence, oral and documentary. Plaintiff has led the evidence of himself as PW-1, Mrs.Jasbir Kaur as PW-2, Manager of SBI Bank as PW-3, Mr.Vikas Gupta, AE Building, Central Zone as PW-4, Mr.Devender Prasad Singh, LDC, SDMC as PW-5, Mr.Abnash Chander Sehgal, Advocate, witness to the Will as PW-6, Mr.Krishen K. Seth as PW- 7, Mr.Mahesh Chand Mohani as PW-8, Ms.Neelam Wadhwa from SBI Lajpat Nagar as PW-9, Mr.Jagdish Kumar Kaushik, a finger print expert as PW-10 and Mr.Gaurav Kaushik, a finger print/document examination expert as PW-11. The defendant No.3 has led the evidence of herself as DW3/1 and evidence of DW3/2-Mrs.Amrita Kataria, the daughter of defendant No.1 and defendant No.3, Smt.Veeran Wali Suri as DW3/3.

25. The basic controversy in this case centres around the validity and legality of the two gift deeds dated 23.05.2007 and 02.06.2008. Relevant issues on this are as follows:- “3. Whether Mrs. Jaswant Kaur was conversant with English language? OPD 1 & 3

4. Whether gift deeds dated 23.5.2007 and 2.6.2008 were executed by Mrs. Jaswant Kaur? OPD 1 & 3

5. Whether the gift deeds dated 23rd June, 2008 are sham, bogus and have been obtained by playing fraud by the defendant nos. 1 and 3 on the plaintiff and late Ms.Jaswant Kaur? OPP

6. Whether the gift deeds are unconscionable? OPP

7. Whether gift deeds have been obtained by exercising dominance by the defendants No.l & 3 on the plaintiff and Mrs. Jaswant Kaur? OPP

8. Whether the gift deeds are hit by Section 16 of the Indian Contract Act, 1872? Onus to prove on both parties”

26. Learned senior counsel for the plaintiff has made various submissions as to why the gift deeds in question are illegal. On the gift deed dated 23.05.2007 allegedly executed by Smt. Jaswant Kaur in favour of defendant No.3, he has made the following salient submissions:-

(i) It is pleaded that Smt. Jaswant Kaur was 97 years old when the gift deed was purportedly executed. Defendant No. 3 is not a legal heir of Late Smt. Jaswant Kaur, being a daughter-in-law. At that time when the gift deed was allegedly executed, all the three children of Smt.Jaswant Kaur were alive. The effect of the gift deed is to deprive all the children of the inheritance of the mother, which is unusual.

(ii) It is further urged that as per defendant No. 3, the execution and registration of the gift deed was done in the drawing room of the suit property and for this purpose, officials from the office of the Sub-Registrar were called to the residence. The gift deed was presented for registration in the drawing room and the photographs were also taken in the drawing room. However, the above oral evidence is not supported by the RTI response received from the office of the Sub-Registrar throwing a doubt on the manner of registration of the said documents.

(iii) It is further urged that both the attesting witnesses were the daughters of the donee-defendant No. 3 and are interested witnesses.

(iv) It is further urged that the gift deed does not bear the signatures of the donor-Smt. Jaswant Kaur. It has the alleged thumb impressions and finger prints. There is no evidence led to prove that the thumb impressions or finger prints are that of Smt. Jaswant Kaur.

(v) It is further urged that as per the evidence of the attesting witness

D3W[2], the thumb impressions and finger prints were taken on 23.05.2007. However, reliance is placed on Sections 52, 58 and 59 of the Registration Act to urge that under the said provisions, endorsements are required to be signed on the same date. In the present case, however the endorsement is of 24.05.2007 making the whole process highly suspicious.

(vi) It is further urged that despite the alleged gift deed having been executed on 23.05.2007, no efforts were made by defendant No. 3 to get mutation of the property done for the ground floor, second floor and terrace though papers were prepared. The whole idea was to keep the gift deed a secret and to reveal it only after the demise of Smt. Jaswant kaur. Similarly, reliance is also placed on the lease deed dated 13.01.2008. There is complete silence in the recital of the lease deed regarding the purported gift deed executed in favour of defendant No. 3 by Smt. Jaswant Kaur though the name of defendant No.3 is contained in the recital. After the death of Smt.Jaswant Kaur, another lease deed was got executed on 10.12.2008 where the factum of the alleged gift deed dated 23.05.2007 was introduced.

27. Regarding the gift deed dated 02.06.2008 allegedly executed in favour of defendant No.1, learned senior counsel for the plaintiff has urged as follows to support his contentions:-

(i) The said gift deed was purportedly executed when Smt. Jaswant Kaur was 98 years old. The effect of the alleged gift deed is that Smt. Jaswant Kaur was left with no right, title or interest in the only property that she owned which was her only source of income.

(ii) It is reiterated that the gift deed does not bear the signatures of

(iii) It is claimed that the gift deed was registered at the suit property.

However, no evidence of the office of the Sub-registrar has been led to prove the execution and registration of the deed at the residence. In fact, in response to an RTI query, the Sub-Registrar has said that they are not aware of the location where the gift deed was executed as the gift deed had already been executed and was presented at their office.

(iv) It is further urged that the two attesting witnesses are the wife and daughter of the donee i.e. interested persons.

(v) Within two and a half months of the alleged execution of the gift deed dated 02.06.2008, Smt. Jaswant Kaur died at the age of 98.

28. It is further urged by the learned senior counsel for the plaintiff as follows:a) That for both the deeds, the attesting witness is D3W2-Ms.Amrita Kataria. In her evidence, she has said that she had contacted Mr. Chhabra, Advocate who was the scribe of the gift deeds. It was also stated that it was Mr.Chhabra who drafted the gift deeds, procured the stamp papers and held discussions with Smt. Jaswant Kaur. Neither was Mr.Chhabra produced as a witness nor are his details available or have been placed on record by defendants No. 1 and 3. b) It is further urged that the doctors who took care of Smt.Jaswant Kaur, namely, Dr. Rekhi and Dr. Jhuraney though listed in the list of witnesses were not called to give evidence. Ex.P-17 is said to be the certificate accompanying the application for execution and registration of the gift deeds, though the said doctor was never called as a witness. c) It is further urged that Smt. Jaswant Kaur was 97 years of age at the relevant time. Smt. Jaswant Kaur and defendant No. 1 & 3 had been living together for over 54 years. It is urged that parents who are at such an advanced age, it is the children who take care of the parents. The defendants in the written statement admit that they were helping Smt. Jaswant Kaur to manage her affairs and she was consistently being looked after by the said children. It is urged that the requirements of Section 16 of the Contract Act have been satisfied in the present case. The relationship between a donor and a donee was such that the donee was able to dominate the will of the donor and as such, used this position to obtain an unfair advantage. Presumption of undue influence will clearly arise in the present case and the burden was on the defendants to prove that no undue influence was exercised. It is urged that this burden has not been discharged. d) It is further urged that the best evidence rule has also not been adhered to. The reasons for the same are as follows:-

(i) The concerned doctors, namely, Dr. Jhuraney and Dr.Rekhi though mentioned in the list of witnesses were never called as witnesses.

(ii) Best evidence to prove execution and registration of the gift deeds was the officials from the office of the Sub-Registrar who as per the version of the attesting witness were present when the gift deeds were allegedly read over to Smt. Jaswant Kaur. The officials were not summoned.

(iii) The best evidence of Smt. Jaswant kaur desiring to execute gift deeds and giving instructions to the scribe was Mr. Chhabra, Advocate whom the attesting witness claims to be the scribe. He was not called for giving evidence.

(iv) It is further urged that the best person to prove the thumb impressions and finger prints of Smt. Jaswant Kaur allegedly on the gift deeds was an handwriting expert whose name though mentioned as a witness was not called by the defendants.

29. Learned senior counsel for the plaintiff has also placed reliance on the judgment of the Supreme Court in the case of Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., (2004) 9 SCC 468 where the issue of validity of transactions between persons standing in confidential relation to each was involved. Reliance is also placed on the judgments of the Supreme Court in the case Rani Pnrnima Debi & Anr. vs. Kumar Khagendra Narayan Deb & Anr., AIR 1962 SC 567 and in the case of Ramesh B. Desai & Ors. vs. Bipin Vadilal Mehta & Ors, (2006) 5 SCC 638

30. Learned senior counsel for defendant No.1 and 3 has urged on the issue of the sound deposing mind and cognitive ability of Smt.Jaswant Kaur as follows:-

(i) It is urged that the plaintiff has filed a document dated 13.04.2007 being Ex.PW-1/D[2] which is a certificate signed by Smt.Jaswant Kaur. It is urged that if she was capable of signing the said certificate and issuing the same, she had the capacity to execute and register the gift deeds.

(ii) Reliance is also placed on the testimony of D3W3-Smt.Veeran Wali

Suri who was herself 98 years old. The said witness, it is stated, has said that she knew Smt.Jaswant Kaur since the time of partition and frequently visited her house as a close acquaintance. She deposed that Smt.Jaswant Kaur was intelligent, well-informed and was hale and hearty.

(iii) It is further urged that the defendants have produced photographs and video clippings which have been admitted by the plaintiff in crossexamination where it is admitted that the mother-Smt.Jaswant Kaur used to attend functions and even sang in these functions.

(iv) Reliance is also placed on a document filed by the plaintiff

Ex.PW1/D17, a medical certificate dated 17.05.2007 issued by Dr.Prakash Jhuraney certifying that Smt.Jaswnat Kaur was of sound mind and had all her senses in normal state. There is another medical certificate dated 19.09.2005 of Dr.Jhuraney PW1/D26 declaring Smt.Jaswant Kaur as mentally alert. Similarly, there is another certificate of Dr.P.S.Rekhi PW1/D27 dated 27.03.2008 declaring her medically fit. It is urged that these are clinching piece of evidence which confirm the testamentary capacity of Smt.Jaswant Kaur. It is urged that the plaintiff has failed to produce any independent cogent evidence to suggest that the mother was not of sound deposing mind or had mental incapacity/infirmity to execute the registered gift deeds.

(v) It is further urged that under the Registration Act and Rules, there are provisions for registration of the documents by persons with physical incapacity to travel to the Sub-Registrar’s Office. In such an eventuality, the concerned officials visit the house of such persons for registration. Hence, merely because the registration was carried out at the residence does not imply or mean that Late Smt.Jaswant Kaur lacked mental capacity to execute the documents or was not of sound deposing mind.

(vi) It is urged that presumption of genuineness and validity is attached to a registered document. Reliance is placed on Section 60 of the Registration Act and Section 114(e) of the Evidence Act. Reliance is also placed on the judgment of the Supreme Court in Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC 353 where the Supreme Court held that there is a presumption that a registered document is validly executed.

(vii) It is further urged that one of the attesting witnesses-Ms.Amrita

Kataraia has clearly deposed that she was present at the time of registration of the gift deeds by her grand-mother and she has identified the thumb impressions of the executant as well as of the attesting witnesses. There is no reason to disbelief her long cross-examination.

(viii) It is further urged that much needless emphasis was made by the plaintiff that on the gift deed there are only the thumb impressions of the mother and not her signatures. It is urged that it was natural for the executant to put her thumb impressions in view of the large number of pages required to be executed.

(ix) It has been urged that it is on record that Smt.Jaswant Kaur was a worldly lady and knew English. It has come on record that she had travelled extensively in Europe and was dealing with Britishers and even the family members used to converse with her in English which she would fully understand. It is stated that the said facts flow from the testimony of D3W1/Defendant No.3.

(x) Reliance is also placed on various documents which have been signed by Smt.Jaswant Kaur to state that all the said documents were in English language and have been signed by Smt.Jaswant Kaur.

(xi) It is strongly urged that the gift deeds in question are legally and validly executed.

31. It is further urged by learned senior counsel for the defendant that the present suit is barred under Order 2 Rule 2 CPC and Order 13 Rule 1 CPC. In the plaint, it is urged that the plaintiff has not stated as to when and on what date and how he came to know about the gift deeds. A vague statement is made in para 12. The present suit challenging the gift deeds was filed on 22.10.2008. The earlier suit filed by the plaintiff being CS(OS) 707/2008 was pending on that date. It was withdrawn on 04.11.2008 without any liberty to institute a fresh suit. It is urged that in the earlier suit, the cause of action was that the defendants are asserting their right of ownership in the property. The cause of action in the present suit is primarily the same. It is only a case of astute drafting and hence, the suit is barred.

32. Learned senior counsel for the defendants has relied upon judgments of the Supreme Court in M.Rangasamy Vs. Rengammal & Ors. (2003) 7 SCC 683 to urge that merely because the person is in a position to dominate the Will of the other, it would not imply that a presumption of undue influence can arise. To the above effect, reliance is also placed on the judgment of the Supreme Court in the case of Jamila Begum(dead) Through Legal Representatives v. Shami Mohd (dead) Through Legal Representatives & Anr., (2019) 2 SCC 727. Reliance is also placed on the judgment of the Supreme Court in the case of Afsar Sheikh & Anr. Vs. Soleman Bibi & Ors., (1976) 2 SCC 142.

33. I will first deal with Issue No.3 i.e. as to whether Mrs.Jaswant Kaur was conversant with English language? (OPD 1 and 3)

34. I may first see the evidence of D3W1- Smt.Manohar Bhasin Hazooria (defendant No.3). In para 15 of her affidavit by way of evidence, she states that her father-in-law used to hold dinners in which Britishers used to be invited. In such gatherings, Smt.Jaswant Kaur used to interact with all the guests in broken English. It is also urged that when the father-in-law and Smt.Jaswant Kaur went abroad, they socialised with the overseas friends. In cross-examination, it is admitted by her that Smt.Jaswant Kaur travelled extensively in Europe and was usually visiting the plaintiff and the family. In Question No.132, she was asked as to whether they have filed any document on record where she had written her name in English. The witness gave an evasive answer that she did not remember. She admitted the signatures of Smt.Jaswant Kaur on a document which was in German language. Smt.Jaswant Kaur had signed the same in Gurumukhi. There is no plausible explanation about the fact that as to why a German document was also signed by Smt. Jaswant Kaur in Gurmukhi.

35. Defendant No.3 also relies upon various documents executed by Smt.Jaswant Kaur which are all in English including Lease dated 24.01.1979-Ex.PW1/D10, Rent receipt dated 20.08.1993-Ex.PW1/01, etc. In her cross-examination, D3W[1] was asked the following question:- “Q 131 Please see para no. 13 of your affidavit, portion mark B to B, is it your say that because the document was written in English and she signed in Gurmukhi she understood English? Ans. Yes.”

36. Similarly, the next question she was asked was as to whether she had filed any document on the court record where Late Smt. Jaswant Kaur had written her name in English. The answer in cross-examination by defendant No. 3 is that she does not remember.

37. Mrs.Amrita Kataria(D3W[2]), the daughter of defendants No.1 and 3 has also led her evidence. In paras 5 and 6 of her affidavit by way of evidence, she reiterates that Smt.Jaswant Kaur had travelled to Europe and insists that she understood English and did not face any difficulty. Again, it is reiterated that she used to organize dinners for the grandfather’s foreigner friends and used to attend the same as a perfect host. It is also admitted that all the documents signed by her were written in English but she used to sign in Gurumukhi. It is also stated that Smt.Jaswant Kaur was fond of watching television and she used to watch English news channels also. D3W[2] in her cross-examination admits that during her travel, when Smt.Jaswant Kaur went to London, she was joined by other family members. Question No. 221 that was put to her in cross-examination specifically asks the said witness whether there is any document on record in the present case or otherwise where Smt. Jaswant Kaur had written her name in English. D3W[2] admits that there is no such document on record in the present case. It is however stated that Smt. Jaswant Kaur had a handwritten telephone directory in her room on which on the front page she had written her name in English. She was asked to produce the said telephone directory. However, she replies that the said telephone directory is in the room which is in possession of the plaintiff.

38. In contrast to the above evidence by the defendants, the plaintiff has led the evidence of PW2-Smt.Jasbir Kaur, the sister of Smt.Jaswant Kaur. PW[2] has clearly stated that Smt.Jaswant Kaur could neither read nor write or understand English language. She was familiar only with Punjabi language. She has further stated that Smt.Jaswant Kaur had studied only for about five years in her village under a Gurudwara priest who used to teach in Gurumukhi language. In her cross-examination, she also admits that she also cannot read English.

39. Clearly, the evidence placed on record by defendant No.3 on this issue is sketchy and not reliable. It is claimed that because Mrs.Jaswant Kaur occasionally interacted socially with foreign friends of her husband or made few trips abroad, she understood English. Admittedly, she had signed all the documents in Gurumukhi which are typed in English. If she understood English there is no plausible explanation as to why she did not sign the English Documents in English. In fact, the plaintiff has placed on record a document written in German which was also signed by Mrs.Jaswant Kaur in Gurumukhi. That apart, her sister PW[2], Smt.Jasbir Kaur has clearly said that she did not understand English and had education only in Gurumukhi. There is no meaningful cross-examination of PW[2] on the said aspect.

40. It is quite clear from the evidence on record that late Smt.Jaswant Kaur did not understand English. Issue No.3 is answered accordingly.

41. I will now deal with issue No.4, 5, 6, 7 and 8 noted above.

42. I may first see the legal position in regard to the nature of evidence the parties are expected to lead to support the plea of fraud, undue influence, etc. In this context, reference may be had to the judgment of the Supreme Court in Krishna Mohan Kul alias Nani Charan Kul & Anr. v. Pratima Maity & Ors., (2004) 9 SCC 468. That was a case in which several witnesses were examined to contend that the executant was more than 100 years of age at the time of alleged execution of the deed in question, he was paralytic and his mental and physical conditions were not in order, though his left hand thumb impression was said to have been affixed on the document. There was no witness who could substantiate that he in fact had put his thumb impression. The court held as follows:- “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 the onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to the validity of the deed. The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, misrepresentation 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 jealousy 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 donee/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 the 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 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.” xxxxx

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 Kharbuja Kuer v. Jang Bahadur Rai [AIR 1963 SC 1203] are logically applicable to the case of old, invalid, infirm (physically and mentally) and illiterate persons.”

43. Reference may also be had to the judgment of the Supreme Court in the case of Lakshmi Amma & Anr. vs. Telengalanarayana Bhatta & Anr., (1970) 3 SCC 159 where the Supreme Court held as follows:- “12. We are satisfied that Narasimha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by Respondent 1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the Scribe in the matter of drawing up of the document Exhibit B-3. An application was also made to the Joint Sub-Registrar, Mangalore for registering the document at the Nursing Home by someone whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma, the wife of Narasimha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by using pressure on Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to realise what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by Respondent 1 presumably because it must have contained recitals about the weak state of health of Narasimha Bhatta. The dispositions which were made by Exhibit B-3, as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to Respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime. All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext. B-3 and it was for Respondent 1 to dispel the same. In our opinion he has entirely to do so with the result that the appeal must succeed and it is allowed with costs in this Court. The decree of the High Court is set aside and that of the trial court restored.

44. Reference may also be had to another judgment of the Supreme Court in the case of Rani Pnrnima Debi & Anr. vs. Kumar Khagendra Narayan Deb & Anr., 1962 (3) SCR 195 where the Supreme Court held as follows:- “23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon: (see, for example, Vellasamay Servai v. L. Sivaraman Servai [(1930) ILR 8 Ran 179], Surendra Nath Lahiri v. Jnanendra Nath Lahiri [AIR 1932 Cal 574] and Girji Datt Singh v. Gangotri Datt Singh [AIR 1955 S.C. 346]. Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting.”

45. Similarly, a Bench of the Madras High Court in the case of Dharman & Six Ors. vs. Marimuthu, 1996 SCC OnLine 375 held as follows:- “10. In Sher Singh and others v. Pirthi Singh and others, AIR. 1975 Allahabad 259 learned single Judge of the Allahabad High Court had an occasion to consider an appeal arising out of a suit filed for cancellation of a deed of gift executed by an illiterate, rustic villager aged about 80/90 years physically infirm and mentally in distress with none to look after him after the death of his wife and the marriage of his two daughters except his nearest relatives who looked after his daily needs and managed his cultivation, in whose favour the gift came to be made depriving him of all his transferable properties during his lifetime. The learned Judge analysed the situation in the context of the principles to be kept in view in dealing with such a challenge in the following terms: “6. Section 16 of the Indian Contract Act incorporates the principles relating to undue influence. As pointed out by the Supreme Court in Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd., AIR 1963 SC 1279 the doctrine of undue influence under the common law was evolved by the Court in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian Contract Act is founded substantially on the rules of English common law. Sub- Section (1) of S. 16 of the Contract Act lays down the principle in general terms. By sub-section (2) a person is deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence the reason for the rule in the third subsection is that a person who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence. In the present case, as observed earlier, the plaintiff was an illiterate, rustic villager aged about 80/90 years, physically infirm and mentally in distress. He had none to look after him after the death of his wife and the marriage of his two daughters. The defendants were his nearest relations who at one time formed a joint family. They looked after his daily needs and managed his cultivation. They were obviously in a position to dominate his will. It was, therefore, for the defendants to establish to the satisfaction of the court that the gift deed had been obtained without exercising undue influence. The law did not require the plaintiff to establish positively that in fact the deed had been obtained by exercising undue influence and in that view of the matter the plaintiff could not be expected to set out in detail the elements undue influence in the plaint. It was enough to point out that the defendants were in a position to demonate his will and that they obtained an unfair advantage by using that position. The plaintiff has led undisputed and unassailable evidence to establish the aforesaid facts and the same position emerges from the stand taken by the defendants. The transaction in question is unconscionable on the face of it. Under the impugned deed the plaintiff was deprived of all his transferable properties during his lifetime. Moreover, mere appears to be no apparent reason to impel the plaintiff to deprove his daughters and their sons the right to inherit the properties after his death. In such a situation the burden lay on the defendants to rebut the presumption and to establish by cogent evidence that the confidence was not abused and the transaction was not induced by undue influence and the gift deed was executed under circumstances which enabled the donor to exercise an independent will. The defendants have miserably failed to discharge the burden cast on them. It appears from the testimony of Sher Singh himself, who is the solitary witness in support of the defence case, that the document was not prepared at the instance of the plaintiff. The scribe has not been examined who could depose whether he prepared the document on the instructions of the plaintiff or was directed to do so by the defendants. Sher Singh admitted that he collected all the details of the Bhumidhari plots. It appears doubtful if the document was read over and explained to the plaintiff before registration. Sher Singh admitted in his cross-examination that the document was read over only once when the scribe took it from the registration office after it had been registered. The defendants did not examine Budh Singh and Tika Singh, the two attesting witnesses, who had been cited as witnesses and were even present in court when the plaintiffs Sher Singh examined himself. Tika Singh was present in court even on the next day. The failure to examine these witnesses, who according to Sher Singh were present when the document was scribed and had accompanied Pirthi Singh to the registration Office where the document was registered, creates serious doubts about the bona fide of the transaction. Their examination may not have been necessary to prove due attestation of the document but it was certainly necessary to rebut the presumption and explain the circumstances in which the gift deed came into existence. The statement of Sher Singh is not sufficient to discharge the burden which lay on the defendants. His testimony to the effect that the idea of executing a gift deed in favour of the defendants was initiated by the plaintiff himself and it was outcome of his own free will has been rightly rejected as he does not appear to be a truthful witness. In his anxiety to show that he was a totally disinterested and innocent person he went to the extent of stating that he was not even aware that the daughters were the legal heirs of the plaintiff and that he did understand what was meant by ‘Washiyatnama’ and ‘Hibbanama’. The defendants took a prominent part in the execution of the gift deed. They collected all the material details of the Bhumidhari plots, purchased the stamps and appear to have got the document scribed under their instruction. The plaintiff due to his physical and mental infirmities remained unaware and ignorant of the consequences of the act which he was induced or misled to perform. Being a simple illiterate villager, he was left with no will or mind of his own due to extreme old age and serious physical ailments which made him totally dependent on others and the defendants took advantage of his helplessness and got the gift deed executed in their favour.” xxx

17. The various decisions referred to above would go to show that if on the face of the document and the nature of the transaction covered by the document appears to be either unconscionable or unnatural one, the burden of proving that the transaction was not induced by undue influence was considered uniformly to rest with the beneficiary under the document. That apart, the various decisions noticed also point out sufficiently indicating as to what type of circumstances present in a particular or given case could be taken to provide the necessary indicia or test to form an opinion about the unnatural or unconscionable character of the transaction. In the case on hand the contents of the gift deed in question and the consequences that may be brought about if the gift under Ex.A-1 is sustained and enforced are to be analysed in the light of the principles referred to above. Some of the admitted facts and stark realities flowing therefrom cannot escape the attention of any judicial forum dealing with any issue before it objectively and judiciously.”

46. The legal position that follows is that when a fraud, misrepresentation or undue influence is alleged by a party in a suit, normally the burden is on them to prove such fraud, undue influence and misrepresentation. However, when a person is in a fiduciary relationship with another and the later 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. Such a person has to prove that there was fair play in the transaction. Such a person standing in a fiduciary relationship has a duty to protect the interest of the person given to his care. The courts watch judiciously all transactions between such persons so that the protector may not use his influence or confidence to his advantage. For persons standing in a confidential relation to each other, it is important to see that the person conferring the benefit on the other had competent and independent advice. Further his age or capacity would also have to be seen. It is obligatory for the donee/beneficiary to prove due execution of the documents in accordance with law.

47. I may also look at the judgment relied upon by the learned senior counsel for the defendants. Heavy reliance was placed on the judgment of the Supreme Court in Jamila Begum(dead) Through Legal Representative v. Shami Mohd (dead) Through Legal Representative & Anr.,(supra). The Supreme Court in the said case held as follows:- “26. In the suit, the respondent-plaintiff has challenged the mortgage deed dated 21-11-1967 as well as sale deed dated 21- 12-1970 executed by his father Wali Mohd. on the ground that they were not executed by him out of his free will and volition. The burden of proving that the documents were vitiated due to undue influence is upon the respondent-plaintiff who is challenging the documents. By examination of Dr Wasim (PW

5) and Ext. 50 Kha., it cannot be said that the burden cast upon the respondent-plaintiff is said to have been discharged, so as to shift the burden to the appellant-defendant. From the evidence of Shami Mohd. (PW 1), it is seen that Wali Mohd. was in service in power house till 1943 and he left his service in the year 1943. As discussed earlier, the sale deed was registered and Wali Mohd. has received part consideration, that is, Rs 8000 before the Sub-Registrar, Kanpur. Having worked in the power house way back in the year 1943, Wali Mohd. must have been worldly wise and knowledgeable.

27. Insofar as the plea that the documents are vitiated by undue influence, as rightly contended by the learned Senior Counsel for the appellant, the plaint averments are vague. It is alleged by Respondent 1-plaintiff that Wali Mohd. had illicit relationship with appellant Jamila Begum and that he was mentally infirm on the date of the alleged sale deed and that the sale deed was obtained by taking undue advantage of his infirmity and illicit relationship.

28. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. The court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not.

29. While considering the aspect of plea of undue influence and onus probandi, in Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib [Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878], it was held as under: (AIR p. 880, paras 4 & 7)

48. Reference was also made to the judgment of the Supreme Court in M.Rangasamy v. Rengammal & Ors.,(supra) relied upon by the defendant. The Court held as follows:- “15. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib and Ors. [(1967) 1 SCR 331], this Court held that the Court trying the case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these two issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence lies upon the person who is in a position to dominate the will of the other, it was further said that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. The High Court presumed the undue influence merely on account of near relationship. The presumption made by the High Court on the basis of relationship was not warranted by law. The whole approach of the High Court was wrong and it cannot be sustained.”

49. Clearly the above judgments do not spell out a different legal position. As noted, when a fraud, misrepresentation or undue influence is alleged by a party in a suit, normally the burden is on them 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. He has to prove fair play in the transaction and that the transaction is genuine and bona fide. Where the contract is said to be induced by undue influence, the court has to consider various factors including (i) 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 (ii) has the donee used that position to obtain an unfair advantage over the donor? If the transaction appears to be unconscionable then the burden of proving that the contract was not induced by undue influence is upon the person who was in a position to dominate the will of the other. Merely because one of the parties is old or of weak character, no presumption of undue influence will obviously arise.

50. The issue will obviously arise as to whether defendants Nos. 1 and 3 were in a fiduciary relationship with Late Smt. Jaswant Kaur. What would constitute a fiduciary relationship? In this context reference may be had to the judgment of the Supreme Court in the case of Marcel Martins vs. M Printer & Ors., (2012) 5 SCC 342 where the Supreme Court held as follows:- “33.Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines “fiducial relation” as under: “There is a technical distinction between a ‘fiducial relation’ which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and ‘confidential relation’ which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised. Generally, the term ‘fiduciary’ applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations.”.

34. Black's Law Dictionary (7th Edn., p. 640) defines “fiduciary relationship” thus: “Fiduciary relationship.—A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships—such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client—require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.” xxx

41. In the ordinary course, upon the demise of the tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by the respondentplaintiffs in para 7 of the plaint which was not disputed by the appellant in the written statement filed by him. It is, therefore, reasonable to assume that the transfer of rights in favour of the appellant was not because the others had abandoned their rights but because the Corporation required the transfer to be in favour of an individual presumably to avoid procedural complications in enforcing rights and duties qua in property at a later stage. xxx

43. Superadded to the above is the fact that the parties were closely related to each other which too lends considerable support to the case of the plaintiffs that the appellant-defendant held the tenancy rights and the ostensible title to the suit property in a fiduciary capacity vis-à-vis his siblings who had by reason of their contribution and the contribution made by their father continued to evince interest in the property and its ownership. Reposing confidence and faith in the appellant was in the facts and circumstances of the case not unusual or unnatural especially when possession over the suit property continued to be enjoyed by the plaintiffs who would in law and on a parity of reasoning be deemed to be holding the same for the benefit of the appellant as much as the appellant was holding the title to the property for the benefit of the plaintiffs.”

51. The above judgment was reiterated by the Supreme Court in the case of Pawan Kumar vs Babulal since deceased through LRs and Ors., (2019) 4 SCC 367.

52. Similarly, reference may be had to the judgment of the Supreme Court in the case of Central Board of Secondary Education and Anr. vs Aditya Bandopadhyay and Ors., (2011) 8 SCC 497 where the Court held has follows:- “39. The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.”

53. A Co-ordinate Bench of this court in the case of CPIO, Supreme Court of India vs. Subhash Chandra Agarwal, (2009) 162 DLT 135 which was affirmed by the Supreme Court in CPIO, Supreme Court of India vs. Subhash Chandra Agarwal, (2020) 5 SCC 481 held as follows:- “68. It is necessary to first discern what a fiduciary relationship is, since the term has not been defined in the Act. In Bristol & West Building Society v. Mothew, [1998] Ch 1, the term “fiduciary”, was described as under: “A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.” xxx

72. The following kinds of relationships may broadly be categorized as “fiduciary”: • Trustee/beneficiary (Section 88, Indian Trusts Act, 1882). • Legal guardians/wards (Section 20, Guardians and Wards Act, 1890). • Lawyer/client. • Executors and administrators/legatees and heirs. • Board of directors/company. • Liquidator/company. • Receivers, trustees in bankruptcy and assignees in insolvency/creditors. • Doctor/patient. • Parent/child. xxx

74. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be “formally” or “legally” ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles.”

54. Hence, a fiduciary relationship arises as noted above by the Supreme Court (i) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.

55. The question is as to whether a fiduciary relationship existed between Late Smt. Jaswant Kaur and defendants No. 1 and 3, namely, her son and daughter-in-law?

56. In the written statement, defendants No. 1 and 3 state that right since the suit property in question was acquired in the name of the deceased mother-in-law, the mother-in-law, namely, Late Smt. Jaswant Kaur always stayed with the said defendants No. 1 and 3. It is also stated that defendants No. 1 and 3 looked after Late Smt. Jaswant Kaur and had taken care of all her psychological, emotional, financial and other needs. It is also stated that the bondage was complete and absolute between the parents, namely, Late Smt. Jaswant Kaur and defendants No. 1 and 3. On the other hand, the plaintiff left India, it is stated, in 1961 to pursue higher studies and thereafter, settled in Germany. There were only sporadic visits of the plaintiff. Further, it is the own case of defendant No. 3 in her affidavit by way of evidence that she married to defendant No. 1 in 1955 and has been residing with her mother-in-law and father–in-law since then. It is also stated that the father-in-law of defendant No. 3 expired in October 1987 and that defendants No. 1 and 3 had thereafter looked after Late Smt. Jaswant Kaur. It is further stated in the evidence that Late Smt. Jaswant Kaur had executed and registered a general power of attorney dated 30.06.1997 in favour of defendant No. 1 whereby defendant No. 1 as attorney of Late Smt. Jaswant Kaur looked after and managed the property in question. She also states in her affidavit that Late Smt. Jaswant Kaur regarded defendant No. 3 as her daughter and that defendant No.3 looked after Late Smt. Jaswant Kaur with her full devotion and affection.

57. In cross-examination of defendant No.3 i.e. D3W[1], a question was posed (question No. 163) as to the reason for Late Smt. Jaswant Kaur to execute and register a power of attorney in favour of defendant no. 1. The answer was that defendant no.1 was incharge of all the things in the house. It was hence admitted that defendant No. 1 was responsible for looking after Late Smt. Jaswant Kaur. In response to question no. 166, namely, as to when Late Smt. Jaswant Kaur needed advice on any matter, whom she would go to, it was answered that she asked us (defendants Nos. 1 and 3). It is also admitted in her cross-examination that defendant No. 1 used to negotiate with prospective tenants and also used to look after the interests of Late Smt. Jaswant Kaur.

58. D3W[2] i.e. Smt. Amrita Kataria in her affidavit also states that Late Smt. Jaswant Kaur’s legs got weak and she used to move around in a wheel chair. She also states that Late Smt. Jaswant Kaur attended weddings of her great-grand children in October 2004 and March 2006 while sitting on a wheel chair.

59. It follows from the evidence clearly that defendant Nos. 1 and 3 were wholly incharge of the affairs of Late Smt. Jaswant Kaur. The property in question was being entirely looked after by defendant No. 1, the day to day needs of Late Smt. Jaswant Kaur were also being met by defendants Nos.[1] and 3. From 2004 or perhaps even prior to that, Late Smt.Jaswant Kaur’s movement got restricted as she used to move around on a wheel chair only. Smt. Jaswant Kaur was blessed with long age and was above 95 years old. These facts clearly show that there existed a relationship of trust and confidence. Late Smt. Jaswant Kaur had placed complete confidence in defendants Nos. 1 and 3 with regard to her general affairs, her assets, her business and her daily requirements. They had stayed together for almost the last 40 years. Late Smt. Jaswant Kaur had reposed complete confidence in defendants No. 1 and 3 regarding all her affairs including affairs of the immovable property. In fact, defendant No.1was the attorney holder on behalf of Late Smt. Jaswant Kaur. Clearly, a fiduciary relationship existed between the said Smt. Jaswant Kaur and defendants No. 1 and 3.

60. In view of the above fact, it would follow that the onus to prove the validity of the gift deeds was on defendants No. 1 and 3. The onus was cast upon the said defendants who were holding position of confidence/trust to show that the transaction was fair and reasonable and that no advantage had been taken of their position.

61. I may now look at the evidence led regarding the execution and registration of the gift deeds. Defendant No. 3/D3W1-Smt.Manohar Bhasin Hazooria in her affidavit by way of evidence on the execution and registration of the gift deeds has stated as follows:- “31. SmtJaswant Kaur also regarded me as her daughter and my family and I looked after her with full devotion and affection. I say that Smt.Jaswant Kaur desired to execute a Gift Deed in my favour in respect of the ground floor and second floor and above of the property, 60 Ring Road, Lajpat Nagar-III, New Delhil10024, for which purpose she told my husband and my daughter Amrita to get a Gift Deed prepared in the favour of the deponent. I say tha my husband and my daughter Amrita, got the Gift Deed drafted through one Mr. Chhabra, Advocate of Jangpura, who was known to them, who also got the registration process facilitated. I say that Smt Jaswant Kaur out of love and affection, and out of her own volition, without any undue influence and in sound disposing mind, executed a gift deed dated 23.05.2007, which was got registered as Document No.6375 in Additional Book No.1, Volume No.7336, at pages 1 to 64, with the office of Sub-Registrar-V, Delhi, in my favour in respect of the ground floor and second floor and above of the suit property. I say that the Sub-Registrar had to be called home for the purpose of registration of the Gift Deed as Smt Jaswant Kaur could not go to the office of the Sub-Registrar. I say that the Gift Deed dated 23.05.2007 (filed on pg. 1 of the Defendants Documents file) (copy of which is exhibited as Ex.P-2) was executed in my presence by Smt.Jaswant Kaur, by affixing her thumb impression at Point ‘J1’ on every page and all finger prints on backside of Page 1 of the Gift Deed. I say that the Gift Deed dated 23.05.2007 was witnessed by Amrita Kataria and Danita Sawhney also in my presence. I say that the Gift Deed dated 23.05.2007 also bears my signatures at Point 'M' on all the pages and my finger prints on backside of Page 1. xxx

49. I say that after this incident Smt.Jaswant Kaur told my daughter Amrita to get a Gift Deed prepared in favour of my husband, Defendant No.1, in respect of the first floor of the property, from the same advocate, who had prepared the earlier Gift Deed. I say that my daughter Amrita, through Mr.Chhabra, Advocate got the Gift Deed drafted and the registration process facilitated. I say that Smt.J aswant Kaur out of love and affection, and out of her own volition, without any undue influence and in sound disposing mind, executed a gift deed dated 02.06.2008 in favour of my husband, Defendant No.1 in respect of the first floor of the property, 60 Ring Road, Lajpat Nagar-III, New Delhi-ll0024, which was got registered as Document No.8429 in Additional Book No.1, Volume No.8511, at pages 155 to 160, with the office of Sub-Registrar-V, Delhi. I say that the Subthe Gift Deed as SmtJaswant Kaur could not go to the office of the Sub-Registrar. I say that in the afternoon of 02.06.2008, four persons from the office of the Sub-Registrar came at our residence, while the Plaintiff was also present in the suit property. I say that the Gift Deed dated 02.06.2008 (filed on pg 129 of the defendants Documents file) (copy of which is marked Ex.P-3) was executed in my presence by Smt. Jaswant Kaur, by affixing her thumb impression on every page at point ‘J2’. I say that in my presence, my husband Defendant No.1 affixed his signatures on the Gift Deed dated 02.06.2008 at Points 'K' on all pages and affixed his fingerprints on Page 134 of the Defendants Documents file. I say that as the Plaintiff refused to witness the Gift Deed, the Gift Deed dated 02.06.2008 (copy of which is marked Ex.P,.3) was therefore witnessed by myself and my daughter Amrita Kataria, who signed the Gift Deed dated 02.06.2008 in my presence. I say that the. Gift Deed dated 02.06.2008 bears my signatures at Points 'M' on page 134 and page 141 and my thumb impressions on page 134 of the Defendants Documents file. The said Gift Deed (filed on pg 129 of the Defendants Documents file) is exhibited as Ex.DW-1/12.”

62. D3W[2] who was one of the attesting witnesses to the gift deeds in her affidavit by way of evidence on the above states as follows:- “15. I say that Smt. Jaswant Kaur was very affectionate towards my mother, Defendant No.3. She desired to execute a Gift Deed in favour of my mother in respect of the ground floor and second floor. and above of the property, 60 Ring Road, Lajpat Nagar-III, New Delhi-ll0024, for which purpose she told me and my father, Defendant No.1 to get a Gift Deed prepared in favour of my mother. I say that my father and I, got the Gift Deed drafted 'through Mr.Chhabra, Advocate, who was known to us, who also got the registration process facilitated. I say that Smt.Jaswant Kaur out of love and affection, and out of her own volition, without any undue influence and in sound disposing mind, executed a gift deed dated 23.05.2007, which was got registered as Document No.6375 in Additional Book No.1, Volume No.7336, at pages 1 to 64, with the office of Sub-Registrar-V, Delhi, in favour of Defendant No.3 in respect of the ground floor and second floor and above of the suit property. I say that the Sub-Registrar had to be called home for the purpose of registration of the Gift Deed as Smt.Jaswant Kaur could not go to the office of the Sub-Registrar. I say that the Gift Deed dated 23.05.2007 (filed on pg 1 of the Defendants Documents file) (copy of which is exhibited as Ex.P-2) was executed in my presence by Smt. Jaswant Kaur, by affixing her thumb impression at Point ‘J1’ on every page and all finger prints on backside of Page 1 of the Gift Deed. It also bears Defendant No.3’s signatures at Point 'M' on all the pages and her finger prints on backside of Page 1. I say that the Gift Deed dated 23.05.2007 was witnessed by me and my sister, MS.Danita Sawhney, who signed in my presence. I say that the Gift Deed dated 23.05.2007 bears my signatures at Points 'A' and my sister, Ms.Danita Sawhney’s signatures at Points 'D' on backside of Page 1 and on page 37 of the Defendants' Documents file. The Gift Deed dated 23.05.2007 is exhibited as Ex.DW-2/1. xxx

17. I say that after a few days of this incident, Smt Jaswant Kaur told me to get a Gift Deed prepared in favour of my father, Defendant No.1, in respect of the first floor of the property, from the same advocate, who had prepared the earlier Gift Deed. As such, I, through Mr.Chhabra, Advocate got the Gift Deed drafted and the registration process facilitated. I say that Smt. Jaswant Kaur out of love and affection, and out of her own volition, without any undue influence and in sound disposing mind, executed a gift deed dated 02.06.2008 in favour of Defendant No.1 in respect of the first floor of the property, 60 Ring Road, Lajpat Nagar-III, New Delhi-110024, which was got registered as Document No.8429 in Additional Book No.1, Volume No.8511, at pages 155 to 160, with the office of Sub-Registrar-V, Delhi. I say that the Sub-Registrar had to be called home for the purpose of registration of the Gift Deed as Smt. Jaswant Kaur could not go to the office of the Sub-Registrar. I say that in the afternoon of 02.06.2008, four persons from the office of the Sub-Registrar came at our residence, while the Plaintiff was also present in the property. I say that the Gift Deed dated 02.06.2008 (filed on pg 129 of the Defendants Documents file) (copy of which is marked Ex.P-3) was executed in my presence by Smt Jaswant Kaur, by affixing her thumb impression on eve!), page at Points ‘J2’. I say that in my presence, Defendant No.1 affixed his signatures on the Gift Deed dated 02.06.2008 at Points 'K' on all pages and affixed his finger prints on Page 134 of the Defendants Documents file. I say that the Gift Deed dated 02.06.2008 (copy of which is marked Ex.P-3) was witnessed by me along with my mother, who signed the Gift Deed in my presence. I say that the Gift Deed dated 02.06.2008 bears my signatures at Points 'A' and Defendant No.3's signatures at Points 'M' on page 134 and page

141. The said Gift Deed (filed on pg 129of the Defendants Documents file) is exhibited as Ex.DW-1/12.”

63. D3W1-Mrs.Manohar Bhasin Hazooria in her affidavit by way of evidence also states that the gift deed was drafted through one Mr.Chhabra, Advocate of Jungpura and thereafter, the gift deed 23.05.2007 was executed. It is admitted that the Sub-Registrar had to be called home for the purpose of registration of the gift deed as Smt.Jaswant Kaur could not go to the office of the Sub-Registrar. It is stated that Smt.Jaswant Kaur executed the deed in her presence by affixing her thumb impression at every page and finger prints on the back side of the gift deed. The gift deed was said to have been witnessed by Ms.Amrtia Kataria and Ms.Danita Sawhney, daughters of defendant No.1 and defendant No.3. Somewhat similar pleas are made for the gift deed dated 02.06.2008 allegedly executed by Smt.Jaswant Kaur in favour of defendant No.1.

64. It is also urged in the affidavit that Smt.Jaswant Kaur used to move around with a four leg walker and later, used to move around in a wheel chair. She attended social functions till her death. She had got a cataract surgery done and was comfortable reading from a distance. She attended the weddings of her grandchildren in October, 2004 and March, 2006. She went to Mumbai to attend the wedding. It is urged that despite her advanced age, she was managing her affairs, mentally alert and was able to take her own decisions. Medical certificates certified by Dr.Prakash Jhuraney and Dr.Rekhi have been filed as Ex.PW1/D26, PW1/D27 and PW1/D28.

65. I have already held above that Late Smt. Jaswant Kaur did not understand English. Both the gift deeds dated 23.05.2007 and 02.06.2008 are written in English. Neither of the two witnesses of the defendants, namely, D3W[1] or D3W2-the attesting witness has testified that somebody had explained to Smt.Jaswant Kaur the contents of the gift deeds and she understood its contents and thereafter, she affixed her thumb impressions on the said deeds. The entire evidence is completely silent on this aspect. There is no evidence led to show that steps were taken by the officials from the Sub-Registrar to ascertain the intention of Smt.Jaswant Kaur and to ascertain that Smt.Jaswant Kaur understood what she was executing. From the evidence, it is manifest that Smt. Jaswant Kaur was an old and partly ailing person, even as per the defendants. Being unaware of English language, she did not comprehend the contents of the documents or the nature of the documents. It was for defendants No.1 and 3/the beneficiaries of the gift deeds to bring on record the fact that somebody had explained the contents of the gift deeds to Late Smt. Jaswant Kaur. Further, it is noteworthy that under the transaction in question that plaintiff was deprived of all rights in the only immovable property that Smt. Jaswant Kaur owned. There is no explanation as to why the other legal heirs of Late Smt. Jaswant Kaur, namely, the plaintiff and defendant No. 2 were completely ousted from inheritance of the property by Late Smt. Jaswant Kaur. It is nobody’s case that defendant No.2, the daughter of Late Smt.Jaswant Kaur was not constantly in touch with Late Smt. Jaswant Kaur.

66. I also cannot help noticing and accepting the plea of the plaintiff that there is no independent witness summoned by the defendants who would show and demonstrate that Late Smt.Jaswant Kaur was in sound deposing mind, understood the contents of the two gift deeds and thereafter, affixed her thumb impressions on the same. The best evidence available to the defendants for proving the execution of the said gift deeds and the fact that Smt.Jaswant Kaur was in sound deposing mind and understood what she was doing have not been produced by the defendants. The best evidence to prove execution and registration was the official from the office of the Sub-Registrar who were present when the execution and registration of the said gift deeds is said to have taken place at the residence of Smt.Jaswant Kaur. Further, the advocate-Mr.Chhabra who drafted the gift deeds could have thrown light on the person who gave him instructions to draft the gift deeds. He has not been summoned as a witness. According to DW3/1 and DW3/2, it was Smt.Jaswant Kaur who might have instructed Mr.Chhabra. He was the best person to depose about the instructions given to him by Smt.Jaswant Kaur and to also depose as to whether she understood and comprehended the contents of the gift deeds. Further, there were two doctors under whose care Smt.Jaswant Kaur was, namely, Dr.Jhuraney and Dr.Rekhi. Though their names were included in the list of witnesses, they have not been summoned to give their evidence.

67. Further, defendant No.3 has placed on record a certificate by Dr.Prakash Jhuraney dated 17.05.2007 which certifies that Smt.Jaswant Kaur was of sound mind and in her senses and in normal state. It is stated that she had suffered from some fracture in her right leg due to which she could not stand or move. This document appears to have been submitted to the office of the Sub-Registrar, Delhi alongwith an application for registration of the gift deed requesting to get the gift deeds executed and registered at the residence. The said Dr.Prakash Jhuraney, though named in the list of witnesses was never called to give his testimony.

68. Clearly, the three best witnesses, namely, the concerned officials from the office of the Sub-Registrar, the advocate-Mr.Chhabra and Dr.Prakash Jhuraney who would have been independent witnesses, have not been summoned to give their testimony that Late Smt.Jaswant Kaur was of sound deposing mind and understood her acts and that she voluntarily knowing fully well about the contents of the two gift deeds executed the same.

69. Reference in this context may be had to Section 114 (g) of the Evidence Act which reads as follows:- “114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume:xxx (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;”

70. Reference may be had to the judgment of the Supreme Court in the case of Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413 where the court held as follows:- “5. xxx Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manickavasaka Pandara [44 IA 98, at p 103] Lord Shaw observed as follows: “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough — they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.” This passage was cited with approval by this Court in a recent decision— Biltu Ram v. Jainandan Prasad [Civil Appeal No. 941 of 1965 decided on April 15, 1968]. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjit Singh [42 IA 202, at p. 206]: “But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.” But Shah, J., speaking for the Court, stated: “The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with Illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.”

71. Similarly, reference may be had to the judgment of the Supreme Court in the case of Punit Rai vs. Dinesh Chaudhary, (2003) 8 SCC 204 where the Court held as follows: “10. We may consider a few cases on the point of drawing adverse inference in the event of withholding of a witness. In Gopal Krishnaji Ketkar v. Mohd. Haji Latif [AIR 1968 SC 1413 at p. 1416] it has been held that if a party who is in possession of best evidence which would throw light on the issue in controversy withholds such evidence, an adverse inference under Section 114(g) of the Evidence Act ought to be drawn against such a party notwithstanding that the onus of proof may not lie on him. It is observed that a party cannot rely on the abstract doctrine of onus of proof or on the fact that he was not called upon to produce such evidence.’’

72. Hence, where a party who is in possession of best evidence which would throw light on the issue in controversy withholds the same, an adverse inference can be drawn against such a party.

73. In this case, the best evidence that was available to show valid execution of the gift deeds has been hidden from the court. The defendants have failed to show that the gifts deeds were validly executed.

74. Accordingly, the issues are answered as follows:- Issue No.4: Whether the gift deeds dated 23.05.2007 and 02.06.2008 were executed by Mrs.Jaswant Kaur? OPD-1 and OPD-3. Answer: The said gift deeds had not been validly executed by Mrs.Jaswant Kaur. She was not aware of the contents of the documents. It is also not proved that she affixed her thumb impressions voluntarily knowing the contents of the documents. Issue No.5: Whether the gift deeds dated 23.05.2007 and 02.06.2008 are sham, bogus and have been obtained by playing a fraud by defendants No.1 and 3 on the plaintiff and late Smt.Jaswant Kaur? OPP. Answer: It has been proved that Smt. Jaswant Kaur was not aware of the contents of the gift deeds and had merely put her thumb impressions. The gift deeds are sham and bogus. Issue No.6: Whether the gift deeds are unconscionable? OPP Answer: Yes. The gift deeds were unconscionable. Issue No.7: Whether the gift deeds have been obtained by exercising dominance by defendants No.1 and 3 on the plaintiff and Mrs.Jaswant Kaur? OPP Answer: Yes. Defendants No. 1 and 3 got the gift deeds by exercising dominance. Issue No.8: Whether the gift deeds are hit by Section 16 of the Indian Contract Act, 1872? Onus to prove on both parties

75. Section16 of the Indian Contract Act reads as follows:- “16. ‘Undue influence’ defined.— (1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another— (a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.” Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence At, 1872.

76. In view of the factual position narrated above, the gift deeds are clearly covered under Section 16 of the Indian Contract Act.

77. I will now deal with Issue No.9, namely, Whether Mrs.Jaswant Kaur has validly executed the Will dated 5th January, 1996? OPP

78. A perusal of the Will shows that it is witnessed by Mr.Krishen K Seth and Mr.A.C.Sehgal. The plaintiff has led the evidence of both the said witnesses. Mr. A.C.Sehgal/PW-6 in his evidence states that he is a lawyer and he knew defendant No. 1 and the whole family. He has said that they are family friends for more than 50 years and continue to be good friends. He confirms that Smt. Jaswant Kaur signed the Will in his presence and that he had also signed as a witness at Point ‘A’ on the said Will-Ex.PW1/1 in the presence of Smt. Jaswant Kaur. He also confirms that another person also signed the Will in his presence and in the presence of Smt. Jaswant Kaur. In his cross-examination, he confirms that he was called by Smt.Jaswant Kaur to the residence to draft the said Will. He confirms that Smt. Jaswant Kaur at that time was active and smart and was in sound disposing mind.

79. The next witness i.e. PW-7-Mr. Krishan Kumar Seth in his evidence has stated that he was a neighbour to the Hazooria family. He confirms that he was a witness for execution of the Will of Smt. Jaswant Kaur and that Smt.Jaswant Kuar had signed in his presence. No meaningful crossexamination has been done of the said witness.

80. The sister of Smt. Jaswant Kaur, namely, PW-2-Ms.Jasbir Kaur in her affidavit by way of evidence states that in 2007-08, Smt. Jaswant Kaur kept saying that the property would devolve upon her sons in equal shares.

81. I may note that defendant No. 2, the sister of the plaintiff and defendant No.1 had filed a written statement on 04.03.2009. In the written statement, she had said that Smt. Jaswant Kaur had in 1996 executed a second Will where she provided for the plaintiff and defendant No.1 to be entitled to half share each in the suit property and also directed that a sum of Rs.10 lacs will be paid to defendant no. 2.

82. It is manifest from the above that Smt. Jaswant Kaur had executed the Will in 1996 in the presence of two witnesses, namely, PW-6 and PW-7 who had also signed as witnesses. The Will was drafted on the instructions of Smt. Jaswant Kaur as is evident from the evidence of PW-6 and the written statement of defendant No. 2. Smt. Jaswant Kaur was aware of the execution of the Will in question. She had executed the will in sound and disposing mind. The above issue is hence answered accordingly.

83. Issue No. 1: Whether the suit has not been valued properly for the purposes of court fees and jurisdiction? OPD[1] and 3

84. No cogent evidence has been led by the defendants to this effect. No submissions are also made. It is accordingly held that the suit has been correctly valued for the purposes of court fees and jurisdiction.

85. Issue No.2: Whether the suit is barred under Order 2 Rule 2 CPC? OPD 1 & 3

86. The only plea raised in this regard is that an earlier suit was filed by the plaintiff in 2008 wherein no relief for setting aside the gift deeds was sought whereas the plaintiff was aware of execution of the two gift deeds dated 23.05.2007 and 02.06.2008.

87. A perusal of the plaint that was filed in 2008 i.e. CS(OS) 707/2008 shows that it was a suit for mandatory and permanent injunction seeking a decree of declaration to declare that defendants No. 1 and 2 (defendants NO. 1 and 3 herein) have no right to represent themselves as owners of the suit property. There is no mention of the gift deeds in the said suit.

88. Other than making a mere bald averment, there is no cogent evidence to show that the plaintiff had knowledge of the gift deeds dated 23.05.2007 and 02.06.2008 when he instituted the said suit.

89. Order 2 Rule 2 CPC reads as follows:- “2. SUIT TO INCLUDE THE WHOLE CLAIM. (1) xxx (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. xxx”

90. The earlier suit in question does not deal with the gift deeds. Hence, the present suit is not barred under Order 2 Rule 2 CPC. Issue No. 2 is answered accordingly.

91. I will now deal with issues No. 10, 11 and 13 which read as follows:- “10. Whether the plaintiff is entitled to a decree of partition as prayed for? OPP

11. Whether the plaintiff is entitled to a decree of rendition of accounts? OPP l[3]. Whether defendant nos. 1 and 3 are entitled to mesne profits, if so at what rate and for which period? OPD 1&3

92. The Will of Late Smt.Jaswant Kaur dated 05.01.1996 stands duly proved. As per the Will, the suit property devolves upon the two sons of Smt. Jaswant Kaur, namely, the plaintiff and defendant No. 1 who become the owners of the suit property in two equal shares. Hence, issue No. 10 is answered accordingly.

93. As far as issue No. 11 and 13 regarding rendition of accounts are concerned, Smt. Jaswant Kaur expired on 15.08.2008. Hence, the plaintiff has been deprived of his right of the suit property since the said date. The plaintiff would be entitled to rendition of accounts of 50% of the profit earned by defendants No. 1 and 3 from the suit property thereafter. The above issue No. 11 and 13 are answered accordingly.

94. Issue No.12: Whether defendants No.1 and 3 are entitled for a decree of mandatory injunction, as claimed in their counterclaim? OPD

95. In view of my findings above, it is clear that defendants No.1 and 3 are not entitled to any such decree.

96. Accordingly, a decree of declaration is passed holding that the gift deeds dated 23.05.2007 and 02.06.2008 are null and void and stand cancelled. A preliminary decree is passed for partition of the suit property holding that the plaintiff and defendant No. 1(heirs of defendant No.1) are entitled to 50% undivided share in the said suit property. The defendants No. 1 and 3 shall also be entitled to render accounts.

97. List on 22.11.2021 for passing appropriate directions regarding partition of the suit property and for rendition of accounts.

JAYANT NATH, J. OCTOBER 29, 2021 rb/st/v